Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and (ix) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (MSCI Inc.), Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any time after Class and/or (y) commitments (“Additional Term Commitments”) to increase the Closing Date, the Borrower may request aggregate principal amount of any existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; the Incremental Cap;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i);
(iii) no existing Lender shall be required to this proviso)provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (iiiA) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the applicable to each Class of Term A Loans, (iv) the final maturity date Loans outstanding prior to such proposed incurrence of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, ;
(vi) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and (ix) guaranties benefiting the Additional Term A Loans and/or Additional Revolving Commitments (and the Additional Term B Loans shall advances of credit thereunder) will rank pari passu in right of payment and of security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Credit Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term LoansLoans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election aggregate amount of all Additional Commitments shall not exceed the Borrower, such additional commitments in respect sum of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (iiA) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date greater of any such new tranche $125,000,000 and an amount equal to 100.0% of term loans shall be no earlier than Consolidated EBITDA of the Maturity Date Borrower for the Term A Loans and most recently ended four full fiscal quarters ending with the latest fiscal quarter (or fiscal year) for which financial statements have been delivered pursuant to Section 6.01 less (y) the Weighted Average Life to Maturity aggregate principal amount of any such new tranche Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of term loans shall be no shorter than Incremental Notes incurred under Section 7.02(u)(A) (the remaining Weighted Average Life to Maturity of the Term A Loansamount in this clause (A); provided that (i) after giving effect to any such addition, the aggregate amount “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term A Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term B Commitments Loans and Additional Revolving Credit Commitments that have been added were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio and the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this Section 2.14 shall clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause (C), assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed $150,000,000; 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, Date;
(iv) the final maturity date Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to the date that is 18 months after the Closing Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater than the Applicable Rate for the Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be no earlier increased to the extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Maturity Date Applicable Rate for the Term B Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (vA) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the weighted average Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity of maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term A Loans or Outstanding Term Loans shall be no shorter than excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the remaining weighted average life Eurodollar Rate “floor” or Base Rate “floor” applicable to maturity of the Outstanding Term A Loans, (vi) the weighted average life Eurodollar Rate “floor” or Base Rate applicable to maturity of the Additional Term B Loans shall be no shorter than increased so that the remaining weighted average life to maturity of applicable “floor” is the Term B Loans, same;
(viivi) no existing Lender shall be required to participate in the provide any Additional Term A Commitments;
(vii) subject to clause (iv), the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and thereof;
(ixviii) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the existing Loans; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Term B Loans.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term LoansCommitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Term Loans are not consistent with those of the Term B Loans (except to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement (American Renal Associates Holdings, Inc.), Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Borrower may by written notice to Administrative Agent elect to seek commitments (“Additional Commitments”) to increase the Administrative Agent, at aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Loans or to establish one or more Additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that new Classes of Loans; provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; the Incremental Cap;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) each of the conditions set forth in Section 3.2 shall be satisfied;
(v) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, Date;
(vi) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(vii) the interest margins for the Additional Term B Loans shall be no shorter determined by Borrower and the Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any Additional Term Loans is greater than the remaining weighted average life to maturity Weighted Average Yield for Outstanding Term Loans by more than 50 basis points, then the Applicable Margin for one or more Classes of the Outstanding Term B Loans, (vii) no Lender Loans shall be required increased to participate in the extent necessary so that the Weighted Average Yield for such Additional Term A Commitments, Loans is not more than 50 basis points higher than the Additional Weighted Average Yield for Outstanding Term B Commitments or the Additional Revolving Credit Commitments, Loans;
(viii) the security interest rate and amortization schedule applicable to guaranties benefiting the Additional Term A Commitments Loans (and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and (ixadvances of credit thereunder) the Additional Term A Loans and the Additional Term B Loans shall will rank pari passu in right of payment and of security with the Revolving Credit existing credit facilities provided for herein;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Outstanding Term Loans or, if agreed to by the lenders of Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) subject to Section 1.4, Borrower shall be in pro forma compliance with the Financial Covenant recomputed (without netting the cash proceeds of any Additional Commitments in calculating the Total Leverage Ratio (but, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such cash proceeds substantially simultaneously with the effectiveness of such Additional Commitments)) as of the last day of the most recently ended fiscal quarter of Borrower for which financial statements have been or were required to have been delivered pursuant to Section 5.1(a) or (b).
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, Borrower shall deliver to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by an Authorized Officer of Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), the conditions set forth in Sections 2.22(a)(iv) and (x) are satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term LoansLoan to Borrower in a principal amount equal to such Person’s Additional Commitment.
(d) This Section 2.22 shall supersede any provisions in Section 2.18 or Section 10.5 to the contrary. The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and Borrower, to effect the provisions of this Section 2.22.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hamilton Lane INC), Credit and Guaranty Agreement (Hamilton Lane INC)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section 2.14 shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life Borrower is only permitted to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans)implement four additional commitments under this Section 2.14; provided further that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; 200,000,000, plus in the case of an Additional Revolving Credit Commitment that serves to effectively extend the maturity of the Revolving Credit Facility, an amount equal to the reduction in the Revolving Credit Facility, (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (viiv) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (viiv) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility, and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Maturity Date and such Additional Revolving Credit Commitment shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vi) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viiivii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof; provided that in the event that the interest margins applicable to any such Additional Term B Commitments is greater than the interest margins for the Term B Facility by more than 25 basis points, then the interest margins for the Term B Facility shall be increased to the extent necessary so that the interest margins for such Additional Term B Commitments are no more than 25 basis points greater than the interest margins for the Term B Facility; provided, further, that, in determining the applicable interest rate margins for such Additional Term B Commitments and the Term B Facility, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Lenders under the Term B Facility or any Additional Term B Commitments in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (B) customary arrangement or commitment fees payable to any of the Arrangers (or their respective affiliates) in connection with the Term B Facility or to one or more arrangers (or their Affiliates) of any Additional Term B Commitments shall be excluded, and (ixC) the if such Additional Term A Loans B Commitments include an interest rate floor greater than the interest rate floor applicable to the Term B Facility, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest margins for the Term B Facility shall be required, to the extent an increase in the interest rate floor for the Term B Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest margins for the Term B Facility) applicable to the Term B Facility shall be increased by such amount and (viii) the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans.
(b) If any Additional Term B Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term B Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term B Lender will have the right, but not an obligation, to make a portion of any Additional Term B Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Credit Commitments, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) after giving effect to the making of Additional Term B Loans or Additional Revolving Credit Loans, as applicable, and on a Pro Forma Basis (and with respect to any Additional Revolving Credit Loans, in the case of clause (B), assuming the Revolving Credit Facility is fully drawn), (A) the Borrower is in compliance with the covenants set forth in Section 7.11, as of the most recently completed period for which the financial statements required by Section 6.01(a) and (b) were required to be delivered and (B) the Consolidated Senior Secured Leverage Ratio shall not exceed 3.00 to 1.00 on the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term B Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term B Commitment, shall make an Additional Term B Commitment to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term B Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments.
(c) Any other terms of and documentation entered into in respect of any Additional Term B Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term B Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Sections 2.14(a)(iii), (iv) or (vii) above; provided that such other terms and documentation in respect of any Additional Term B Loans may be materially different from those of the Term B Loans to the extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term B Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term B Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 2 contracts
Samples: Credit Agreement (Gentiva Health Services Inc), Credit Agreement (Gentiva Health Services Inc)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any time after Class and/or (y) commitments (“Additional Term Commitments”) to increase the Closing Date, the Borrower may request aggregate principal amount of any existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that: (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000the Incremental Cap; (ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i); (iii) no existing Lender shall be required to this proviso)provide any Additional Commitments; (iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (iiiA) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn -86- and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period; (v) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the applicable to each Class of Term A Loans, (iv) the final maturity date Loans outstanding prior to such proposed incurrence of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, ; (vi) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ); (vii) the interest margins for the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans incurred within twelve months after the Closing Date is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans; (viii) (A) the security interest and (ix) guaranties benefiting the Additional Term A Loans and/or Additional Revolving Commitments (and the Additional Term B Loans shall advances of credit thereunder) will rank pari passu in right of payment and of security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Credit Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities; (ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term LoansLoans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term -87- Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. (e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments of the Class of Revolving Credit Commitments with the Latest Maturity Date and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; 500,000,000;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, Date;
(iv) the final maturity date of any Additional Term B Loans shall be no earlier have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity Date for of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term B Loans, ”);
(v) the weighted average life Applicable Rate with respect to maturity any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term Loans; provided that in the event that the Applicable Rate for any Additional Non-Institutional Term Loans is greater than the Applicable Rate for the Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Tranche A Term Loans shall be no shorter increased to the extent necessary so that the Applicable Rate for the Additional Non-Institutional Term Loans is not more than 50 basis points higher than the remaining weighted average Applicable Rate for the Tranche A Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Outstanding Term Loans shall be equated to an increase in the Applicable Rate for the Additional Term Loans for purposes of the Term A Loans, this clause (v);
(vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no existing Lender shall be required to participate in the provide any Additional Term A Commitments;
(vii) subject to clause (iv), the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof thereof;
(viii) except during the Collateral Suspension Period (unless the Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans shall rank pari passu with or junior in right of payment and/or of security with the existing Loans, and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Tranche A Term Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Tranche A Term Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans Extension Amendment may provide for such amendments to this Agreement and the Term Loansother Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14.
(e) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (MSCI Inc.)
Increase in Commitments. (ai) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after Agent (which shall promptly notify the Closing DateLenders), the Borrower may request one or more Additional request: additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments denominated in respect of any term loans may currency to be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if incurred by the Borrower makes such electionand/or any U.S. Subsidiary Guarantor (each, the provisions of this Section shall be read in a manner that permits such election an “Incremental Facility”) pursuant to be implementedany Incremental Joinder; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional all additional Term A Commitments, Additional Term B Commitments and Additional additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 Section 2.16(a) shall not exceed $150,000,000; (ii) any 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 of $10,000,000 5,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof thereof.
(provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit ii) Any loans made in respect of Additional any such additional Term A CommitmentsCommitments (the “Incremental Term Loans”) may be made, Additional at the option of the Borrower, either by (i) increasing the Initial Term B Commitments Loans with the same terms (including pricing) as the existing Initial Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) shall not mature prior to 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 and Additional (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.
(iii) Any such additional Revolving Credit Commitments set forth in clause may be made by (x) establishing one or more additional Classes of revolving credit commitments (an “Incremental Revolving Facility”); provided the (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans such Incremental Revolving Facility shall be no earlier than the Maturity Date for final maturity date of the Term A LoansInitial Revolving Credit Facility, (ivii) 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 Additional 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).
(iv) The Borrower may invite any Lender or any additional Eligible Assignees to become Term B Loans 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 no earlier than within the Maturity Date for the Term B Loans, 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.
(v) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the weighted average life to maturity Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the Additional Term A Loans final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (i)(A) the representations and warranties contained in Article 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 no shorter than the remaining weighted average life to maturity true and correct in all respects as so qualified) on and as of the Term A LoansIncremental 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 (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).
(vi) 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 Agreement and the weighted average life other Loan Documents, and (B) shall make an Incremental Term Loan to maturity the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, applicable Class.
(vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the The interest rate and amortization schedule applicable to the Additional any Incremental Term A Commitments and the Additional Term B Commitments shall Loans will be determined by the Borrower and the lenders thereof and (ix) providing such Incremental Term Loans; provided that in the Additional case of any such Incremental Term A Loans and denominated in Dollars that are secured by the Additional Term B Loans shall rank Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or 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.
(viii) 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 related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(ix) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility (and for the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Loans 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 Term LoansAdministrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(x) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; 500,000,000;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, Date;
(iv) the final maturity date of any Additional Term B Loans shall be no earlier have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity Date for of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term B Loans, ”);
(v) the weighted average life Applicable Rate with respect to maturity any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term Loans; provided that in the event that the Applicable Rate for any Additional Non-Institutional Term Loans is greater than the Applicable Rate for the Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Tranche A Term Loans shall be no shorter increased to the extent necessary so that the Applicable Rate for the Additional Non-Institutional Term Loans is not more than 50 basis points higher than the remaining weighted average Applicable Rate for the Tranche A Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Outstanding Term Loans shall be equated to an increase in the Applicable Rate for the Additional Term Loans for purposes of the Term A Loans, this clause (v);
(vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no existing Lender shall be required to participate in the provide any Additional Term A Commitments;
(vii) subject to clause (iv), the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof thereof;
(viii) except during the Collateral Suspension Period (unless the Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans shall rank pari passu with or junior in right of payment and/or of security with the existing Loans, and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Tranche A Term Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Tranche A Term Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans Extension Amendment may provide for such amendments to this Agreement and the Term Loansother Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14.
(e) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life weighted average life to Maturity maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000300,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (viiv) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viiivi) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof; provided that in the event that the interest margins applicable to such Additional Term Commitments is greater than the interest margins for the Term Facility by more than 50 basis points, then the interest margins for the Term Facility shall be increased to the extent necessary so that the interest margins for such Additional Term Commitments are no more than 50 basis points greater than the interest margins for the Term Facility; provided, further, that in determining the interest margins applicable to the Term Facility and the Additional Term Commitments, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Lenders of the Term Facility or the Additional Term Commitments in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and (ixy) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term Facility or to one or more arrangers (or their affiliates) of the Additional Term Commitments shall be excluded and (vii) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans. Any Additional Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (it being understood that customary arrangement or commitment fees payable to one or more arrangers (or their affiliates) of the Additional Revolving Credit Commitments may be different than those paid with respect to the Revolving Credit Facility).
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, to the extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after Agent (which shall promptly notify the Closing DateLenders), the Borrower may request one or more Additional request: additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments denominated in respect of any term loans may currency to be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if incurred by the Borrower makes such electionand/or any U.S. Subsidiary Guarantor (each, the provisions of this Section shall be read in a manner that permits such election an “Incremental Facility”) pursuant to be implementedany Incremental Joinder; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional all additional Term A Commitments, Additional Term B Commitments and Additional additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 Section 2.16(a) shall not exceed $150,000,000; (ii) any 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 of $10,000,000 5,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof thereof.
(provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit b) Any loans made in respect of Additional any such additional Term A CommitmentsCommitments (the “Incremental Term Loans”) may be made, Additional at the option of the Borrower, either by (i) increasing the Initial Term B Commitments Loans with the same terms (including pricing) as the existing Initial Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) shall not mature prior to 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 and Additional (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.
(c) Any such additional Revolving Credit Commitments set forth in clause may be made by (x) establishing one or more additional Classes of revolving credit commitments (an “Incremental Revolving Facility”); provided the (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans such Incremental Revolving Facility shall be no earlier than the Maturity Date for final maturity date of the Term A LoansInitial Revolving Credit Facility, (ivii) 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 Additional 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 B Loans 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 no earlier than within the Maturity Date for sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Term B LoansAdministrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (vi)(A) the weighted average life representations and warranties contained in Article 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 maturity “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Additional Term A Loans 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 (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 no shorter than subject to the remaining weighted average life to maturity of the Term A Loans, LCT Provisions and (vi2) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall only representations and warranties that will be required to participate be true and correct in all material respects as of the Additional 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 A CommitmentsLoan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B) shall make an Incremental Term Loan to the Additional Term B Commitments Borrower or the Additional applicable Subsidiary Guarantor in a principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit CommitmentsCommitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(viiig) the The interest rate and amortization schedule applicable to the Additional any Incremental Term A Commitments and the Additional Term B Commitments shall Loans will be determined by the Borrower and the lenders thereof and (ix) providing such Incremental Term Loans; provided that in the Additional case of any such Incremental Term A Loans and denominated in Dollars that are secured by the Additional Term B Loans shall rank 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 All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or 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 related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility (and for the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Loans 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 Term LoansAdministrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(j) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Original Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term B Loans or with respect to no more than $275,000,000 of Additional Term Commitments and Permitted Additional First Lien Debt shall be no earlier than the Maturity Date of the Term A Loans and (y) the Weighted Average Life weighted average life to Maturity maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B Loans or with respect to no more than $275,000,000 of Additional Term Commitments and Permitted Additional First Lien Debt shall be no shorter than the remaining weighted average life to maturity of the Term A Loans); provided that (i) after giving effect to any such additionadditional commitments, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000275,000,000 (minus the aggregate principal amount of any Permitted Additional First Lien Debt the proceeds of which are not used solely to repay Term Loans) unless, after giving effect to any such additional commitments, the Consolidated Senior Secured Leverage Ratio, computed on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered, would be no greater than 3.00 to 1.0; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (ivx) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans or (y) with respect to no more than $275,000,000 of Additional Term Loans and Permitted Additional First Lien Debt no earlier than the Maturity Date of the Term A Loans, (viv) the weighted average life to maturity of the Additional Term A Loans shall be (x) no shorter than the remaining weighted average life to maturity of the Term B Loans or (y) with respect to no more than $275,000,000 of Additional Term Loans and Permitted Additional First Lien Debt shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (viiv) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viiivi) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof thereof; provided that if such Additional Term Commitments (other than those in an amount not exceeding $275,000,000 that are made using clauses (iii)(y) and (ixiv)(y) above) are incurred within 18 months of the Original Closing Date then and only then in the event that the interest margins applicable to such Additional Term A Commitments is greater than the interest margins for the Term B Loans by more than 50 basis points, then the interest margins for the Term B Loans shall be increased to the extent necessary so that the interest margins for such Additional Term Commitments are no more than 50 basis points greater than the interest margins for the Term B Loans; provided, further, that in determining the interest margins applicable to the Term B Loans and the Additional Term Commitments, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term B Loans or the Additional Term Commitments in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or to one or more arrangers (or their affiliates) of the Additional Term Commitments shall be excluded and (vii) the Additional Term Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans. Any Additional Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (it being understood that customary arrangement or commitment fees payable to one or more arrangers (or their affiliates) of the Additional Revolving Credit Commitments may be different than those paid with respect to the Revolving Credit Facility).
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, to the extent such difference shall be reasonably satisfactory to the Administrative Agent or be consistent with terms and documentation in respect of comparable Indebtedness of similar companies at the time of such Additional Term Loans in light of the market. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Wendy's Co)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life weighted average life to Maturity maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term A Loans); provided that (i) after giving effect to any such additionadditional commitments, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000275,000,000 (minus the aggregate principal amount of any Permitted Additional First Lien Debt the proceeds of which are not used solely to repay Term Loans) unless, after giving effect to any such additional commitments, the Consolidated Senior Secured Leverage Ratio, computed on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered, would be no greater than 3.00 to 1.0; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A LoansLoans (excluding the Delayed Term Loan), (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (viiv) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viiivi) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof; provided that if such Additional Term Commitments are incurred within 18 months of the Closing Date then and only then in the event that the interest margins applicable to such Additional Term Commitments is greater than the interest margins for the Term Facility by more than 50 basis points, then the interest margins for the Term Facility shall be increased to the extent necessary so that the interest margins for such Additional Term Commitments are no more than 50 basis points greater than the interest margins for the Term Facility; provided, further, that in determining the interest margins applicable to the Term Facility and the Additional Term Commitments, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Lenders of the Term Facility or the Additional Term Commitments in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and (ixy) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term Facility or to one or more arrangers (or their affiliates) of the Additional Term Commitments shall be excluded and (vii) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans. Any Additional Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (it being understood that customary arrangement or commitment fees payable to one or more arrangers (or their affiliates) of the Additional Revolving Credit Commitments may be different than those paid with respect to the Revolving Credit Facility).
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, to the extent such difference shall be reasonably satisfactory to the Administrative Agent or be consistent with terms and documentation in respect of comparable Indebtedness of similar companies at the time of such Additional Term Loans in light of the market. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek commitments (“Additional Commitments”) to increase the aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election aggregate amount of all Additional Commitments shall not exceed the Borrower, such additional commitments in respect sum of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (iiA)(x) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and $75,000,000 less (y) the Weighted Average Life to Maturity aggregate principal amount of any such new tranche First Lien Indebtedness incurred under Section 7.02(b)(ii) less (z) the aggregate principal amount of term loans shall be no shorter than Incremental Notes incurred under Section 7.02(v)(A) (the remaining Weighted Average Life to Maturity of the Term A Loansamount in this clause (A); provided that (i) after giving effect to any such addition, the aggregate amount “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term A Loans, to the extent such Additional Term Loans were obtained pursuant to clause (C) below), plus (C) after utilization of the amounts available pursuant to clauses (A) and (B) above, additional amounts so long as the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Additional Term Loans available under such Additional Commitments had been outstanding on the last day of such period, and, in each case excluding the cash proceeds of any Term Loans pursuant to such Additional Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall do not exceed $150,000,000; 6.50:1.00 (this clause (C), the “Incremental Ratio Exception”);
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, Date;
(iv) the final maturity date of any Additional Term B Loans shall be no earlier have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity Date for of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term B Loans, ”);
(v) the weighted average life Applicable Rate with respect to maturity any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term A Loans; provided that with respect to any Additional Term Loans incurred prior to the second anniversary of the Initial Funding Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater than the Applicable Rate for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be no shorter increased to the extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the remaining weighted average Applicable Rate for the Initial Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity of maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term A Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Initial Term Loans shall be increased so that the applicable “floor” is the same;
(vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no existing Lender shall be required to participate in the provide any Additional Term A Commitments;
(vii) subject to clause (iv), the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and thereof;
(ixviii) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit existing Term Loans ; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Initial Term Loans.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Commitment.
(c) Any other terms of and documentation entered into in respect of any Additional Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Term Loans are not consistent with those of the Initial Term Loans (except to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Borrowing Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Borrowing Amendment but no other existing Lender), and the Additional Borrowing Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 1 contract
Samples: Second Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative AgentAgent (which shall promptly notify the Lenders), at any time after the Closing Effective Date, the Borrower may request on one or more Additional occasions, additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implementedCommitments; provided that (xA) the final maturity date of after giving effect to any such new tranche of term loans shall additional Indebtedness, the Borrower would be in compliance (the “Additional Commitments Compliance Condition”) with the covenant set forth in Section 7.09(b) and the Leverage Ratio calculated on a Pro Forma Basis would be no earlier greater than 2.00:1.00 as of the Maturity Date for most recently completed period of four consecutive fiscal quarters ending prior to the Term A incurrence of such Indebtedness, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b) as if Loans had been made in an aggregate principal amount equal to the full amount of such additional Commitments of the first day of the fiscal period covered thereby and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (iB) after giving effect to any such addition, the aggregate amount of Additional all additional Term A Commitments, Additional Term B Commitments and Additional additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 2.14) shall not exceed $150,000,000; (ii) any 250,000,000. Any such addition under this Section 2.14(a) shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $500,000 5,000,000 in excess thereof thereof.
(provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit b) Any loans made in respect of any such additional Term Commitments (the “Additional Term A CommitmentsLoans”) may be made, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause at the option of the Borrower, either by (i) increasing the Term B Loans with the same terms (including pricing) as the existing Term B Loans, or (ii) creating a new tranche of term loans (an “Additional Term Loan Tranche”). Any Additional Term Loan Tranche shall not mature prior to this proviso), (iii) the final maturity stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans. The Weighted Average Life to Maturity of any Additional Term A Loans Loan Tranche shall be no earlier less than the Weighted Average Life to Maturity Date of such latest maturing Tranche of Term Loans. The applicable yield relating to any Additional Term Loan Tranche shall not be greater than the Applicable Margin for the existing Term A B Loans plus 0.50% per annum unless the Applicable Margin for the existing Term B Loans are increased so that the yield applicable to the applicable Additional Term Loan Tranche does not exceed the Applicable Margin for the existing Term B Loans by more than 0.50% per annum; provided that in determining the yield applicable to the existing Term B Loans and the Additional Term Loans, (ivA) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the final maturity date Borrower to the Lenders of any Additional the existing Term B Loans or the Additional Term Loans in the syndication thereof shall be no earlier than included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the Maturity Date for the Term B Loans, (v) the weighted average remaining life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans), (viB) customary arrangement or commitment fees payable to the weighted average life joint bookrunners (or their affiliates) or to maturity one or more arrangers (or their affiliates) of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, excluded and (viiC) no Lender shall be required to participate in if the Additional Term A CommitmentsLoan Tranche includes a “LIBOR floor”, such amount shall be converted into an interest margin (in an amount reasonably determined by the Additional Term B Administrative Agent) for purposes of determining any increase to the applicable yield.
(c) Any such additional Revolving Credit Commitments or (the “Additional Revolving Credit Commitments”) shall be made by increasing the Revolving Credit Commitments with the same terms (including pricing) as the existing Revolving Credit Commitments.
(d) To achieve the full amount of a requested increase, the Borrower (viiii) shall request additional Term Commitments and/or Revolving Commitments from the interest rate Lenders and amortization schedule applicable (ii) may, at its option, at the same time or thereafter, invite additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, in each case, pursuant to a commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel. At the time of the sending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, the Borrower (in consultation with the 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 provide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an additional Term Commitment or Revolving Credit Commitment, as applicable. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Term A Commitments Effective Date”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Additional Term B Commitments Effective Date. As condition precedents to such addition, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(e), the representations and warranties contained in Section 5.05(a) and (b) shall be determined deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (B) no Default exists before or after giving effect to such addition and (C) compliance with the Additional Commitments Compliance Condition and (ii) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid.
(f) On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing an additional Term Commitment (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B) shall make an Additional Term Loan to the Borrower in a principal amount equal to such additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents (except that the interest rate, amortization payment amounts and maturity date applicable to any Additional Term Loan under an Additional Term Loan Tranche may be as agreed by the Borrower and the lenders thereof applicable Lenders providing the additional Term Commitments; provided that such amortization payment amounts and maturity date shall be in accordance with the requirements of Section 2.14(b)) and (ixii) the Additional Term A Loans each Lender or Eligible Assignee which is providing an additional Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the Additional Term B Loans shall rank pari passu in right of payment and of security other Loan Documents with the a Revolving Credit Loans and Commitment that is increased by (in the Term Loanscase of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (Lender Processing Services, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; 300,000,000, (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A LoansDate, (iv) the final maturity date of any Additional Term B Loans shall be no earlier have a Weighted Average Life to Maturity equal to or greater than the Maturity Date for Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term B Loans”), (v) the weighted average life Applicable Rate with respect to maturity any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term A Loans; provided that in the event that the Applicable Rate for any Additional Term Loans is greater than the Applicable Rate for the Outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the Outstanding Term Loans shall be no shorter increased to the extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the remaining weighted average Applicable Rate for the Outstanding Term Loans, and the Applicable Rate for the Revolving Credit Facility (including at each point in the grid) shall be increased by a like amount; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or Outstanding Term Loans pursuant to this clause (v), (x) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity maturity) shall be included, (y) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Outstanding Term Loans or the Additional Term Loans shall be excluded, and (z) if the lowest permissible Eurodollar Rate is greater than 1.5% or the lowest permissible Base Rate is greater than 2.5% for such Additional Term Loans, the difference between such “floor” and 1.5%, in the case of Eurodollar Loans, or 2.5%, in the Term A case of Base Rate Loans, shall be equated to an increase in the Applicable Rate for purposes of this clause (v), (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viiivii) subject to clause (iv), the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and (ixviii) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, in each case in this clause (viii) on terms reasonably satisfactory to the Administrative Agent.
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Additional Term Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Credit Commitments, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. Any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii) or (viii) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, as the case may be, to the extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after Agent (which shall promptly notify the Closing DateLenders), the Borrower may request one or more Additional request: additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary 103
(it being understood and agreed that b) Any loans made in respect of any such additional Term Commitments (ithe “Incremental Term Loans”) may be made, at the election option of the Borrower, such additional commitments in respect either by (i) increasing the Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as the existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (5) creating a new tranche of any term terms loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implementedan “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (xa) shall not mature prior to the final maturity stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of any incurrence of such new tranche of term loans shall be no earlier than the Maturity Date for the Incremental Term A Loans and Loans, (yb) the Weighted Average Life to Maturity of any such new tranche of term loans Incremental Term Loan Class shall be no shorter less than the remaining Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (c) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term A 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.
(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 that the (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans such Incremental Revolving Facility shall be no earlier than the Maturity Date for final maturity date of the Term A LoansInitial Revolving Credit Facility, (ivii) 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 Additional Term B Loans shall be no 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 than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the Additional “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 any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (viiii)(A) the representations and warranties contained in Article 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 104
(f) On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loan Class (e) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (f) shall make an Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (6) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate and amortization schedule applicable to the Additional any Incremental Term A Commitments and the Additional Term B Commitments shall Loans will be determined by the Borrower and the lenders thereof and providing such Incremental Term Loans; provided that (ixi) in the Additional case of any such Incremental Term A Loans and denominated in Dollars that are secured by the Additional Term B Loans shall rank Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency RateTerm SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Eurocurrency RateTerm SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency RateTerm SOFR floor applicable to such Initial Term Loan and (ii) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the 2022 Incremental Term B-2 Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the 2022 Incremental Term B-2 Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term B-2 Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 2022 Incremental Term B-2 Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any 2022 Incremental Term B-2 Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 2022 Incremental Term B-2 Loan.
(h) Any Incremental Facility, if secured, may be 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 related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be 105
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility (and for the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Loans 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 Term LoansAdministrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(j) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after the Closing Date, the each Borrower may on up to three (3) different occasions (in the aggregate for both Borrowers) request one or more Additional Term A Commitments, one Commitments or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans)Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000250,000,000; provided further that $100,000,000 of such aggregate amount shall only be permitted to be incurred as a Term Facility to be used solely to finance Permitted Acquisitions, (ii) any such addition shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) (A) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, Loans and (ivB) the final maturity date of any Additional Term B Revolving Credit Loans shall be no earlier than the Maturity Date for the Term B Revolving Credit Loans, (viv) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, and (viv) if the initial yield of any Additional Term Loans or any Additional Revolving Credit Loans (as determined by the Administrative Agent to be equal (x) in the case of Additional Term Loans, to the sum of (A) the weighted Applicable Rate with respect to the Additional Term Loans and (B) if the Additional Term Loans are initially made at a discount or the Lenders making the same receive a fee from the applicable Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Additional Term Loans, being referred to herein as “OID”), the amount of OID divided by the lesser of (1) the average life to maturity of such Additional Term Loans and (2) four and (y) in the case of Additional Revolving Credit Loans, to the Applicable Rate with respect to the Additional Revolving Credit Loans) exceeds the Applicable Rate then in effect for Term Loans or Revolving Credit Loans, as the case may be, by more than 50 basis points (the amount of such excess being referred to herein as “Yield Differential”), then each Applicable Rate for each adversely effected Term Loan or Revolving Credit Commitment shall automatically be increased by the Yield Differential, effective upon the making of the Additional Term B Loans shall be no shorter than or the remaining weighted average life to maturity providing of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, as the case may be.
(viiib) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the interest rate Administrative Agent and amortization schedule the applicable Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final amount of such addition. The Administrative Agent shall promptly notify the applicable Borrower and the Lenders (which may include Persons reasonably acceptable to the Administrative Agent and the applicable Borrower that were not Lenders prior to the Additional Term A Commitments Effective Date) of the final amount of such addition and the Additional Term B Commitments Effective Date. As a condition precedent to such addition, the BV Borrower shall deliver to the Administrative Agent a certificate of the BV Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the BV Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be determined by deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the BV Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with each of the lenders thereof and covenants set forth in Section 7.11 as of (ixA) the Additional Commitments Effective Date and (B) the last day of the most recently ended determination period after giving Pro Forma Effect to such Additional Term A Commitment or Additional Revolving Credit Commitment, as applicable, the making of Additional Term Loans or Additional Revolving Credit Loans, as the case may be, in respect thereof and any Investment or Disposition to be consummated in connection therewith. On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender”, as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term B Commitment, shall make an Additional Term Loan to the applicable Borrower in a principal amount equal to such Additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans shall rank pari passu made or any Additional Revolving Credit Commitments provided, in right of payment and of security each case pursuant to this Section 2.14, to the extent not consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term LoansCommitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Sensata Technologies Holland, B.V.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after Agent (which shall promptly notify the Closing DateLenders), the Borrower may request one or more Additional request: additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments (it being understood each, a “Commitment Increase”) pursuant to any Commitment Increase and agreed Joinder Agreement; provided, that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional all additional Term A Commitments, Additional Term B Commitments and Additional additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 2.16(a) shall not exceed $150,000,000; (ii) any the Incremental Cap. Each such addition under this Section 2.16(a). shall be in an aggregate amount of $10,000,000 5,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof thereof.
(provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit b) Any loans made in respect of any such additional Term Commitments (the “Additional Term A CommitmentsLoans”) may be made, at the option of the Borrower, either by (i)(i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii)(ii) creating a new tranche of terms loans (an “Additional Term B Commitments and Loan Tranche”); provided, that any Additional Revolving Credit Commitments set forth in clause (i) to this proviso)Term Loan Tranche other than Customary Bridge Loans or the Inside Maturity Amount, (iiiA)(A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans and (B)(B) the final maturity date Weighted Average Life to Maturity of any Additional Term A Loans Loan Tranche shall be no earlier less than the Weighted Average Life to Maturity Date for of such latest maturing Tranche of Term Loans.
(c) Any such additional Revolving Credit Commitments (the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the “Additional Revolving Credit Commitments”) may be made by increasing the Revolving Credit Commitments with the same terms (including pricing) as any existing Revolving Credit Commitments of the latest maturing Tranche of Revolving Credit Commitments, and if a Collateral Release Period is then in effect, shall be unsecured.
(viiid) the interest rate 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 amortization schedule applicable joinder agreement in form and substance reasonably satisfactory to the Administrative Agent (each, a “Commitment Increase and Joinder Agreement”). No Lender will be obligated to provide all or any portion of any Commitment Increase 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 Commitment Increase.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Term A Commitments Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Commitment Increase of the final allocation thereof and the Additional Term B Commitments Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (i)(i)(A)(A) the representations and warranties contained in Article 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 Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and (B)(B) no Event of Default exists before or 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 Commitment Increase are intended to be applied to finance an acquisition or other Investment, in each case permitted hereunder, and the lenders providing such Commitment Increase so agree, such requirements in clauses (i)(A) and (B) of this Section 2.16(e) may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions and “specified representations” provisions and (ii)(ii) the Borrower shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or Section 6.01(b) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn and any transactions in connection with the incurrence thereof were consummated, in each case, on the first day of the fiscal period covered thereby (and the proceeds from such additional Commitments shall not be netted from Indebtedness in the calculation of the applicable leverage ratio test).
(f) On each Additional Commitments Effective Date, (i)(i) each Lender or Eligible Assignee which is providing an additional Term Commitment (A)(A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B)(B) shall make an Additional Term Loan to the Borrower in a principal amount equal to such additional Term Commitment, and such Additional Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii)(ii) each Lender or Eligible Assignee which is providing an additional Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents with a Revolving Credit Commitment that is increased by (in the case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
(g) The interest rate applicable to any Additional Term Loans will be determined by the Borrower and the lenders thereof and (ix) the providing such Additional Term A Loans and the Loans.
(h) Any Additional Term B Loans shall may rank pari passu in right of payment and of or junior with respect to security with the Revolving Credit Loans Facilities (and if applicable, subject to an Acceptable Intercreditor Agreement), and if a Collateral Release Period is then in effect, shall 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 Additional Term Loan Tranche, if not substantially consistent with the terms of the applicable Term Facility, shall be reasonably satisfactory to the Administrative Agent (it being understood that (i) terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are satisfactory to the Administrative Agent and (ii) terms that are more favorable to the lenders or the agent of such Additional Term Loan Tranche than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term LoansLenders or the Administrative Agent, as applicable, shall be deemed satisfactory to the Administrative Agent).
(j) The proceeds of any Commitment Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Samples: Amendment No. 1 (Black Knight, Inc.)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to Administrative Agent elect to seek commitments (“Additional Commitments”) to increase the Administrative Agent, at aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Loans or to establish one or more new Classes of Loans (“Additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans”); provided that: (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000the Incremental Cap; (ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ; (iii) no existing Lender shall be required to provide any Additional Commitments; (iv) each of the following conditions required to be set forth in the applicable Additional Credit Extension Amendment shall have been satisfied; (v) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for of the Term B-78 Loans; (vi) other than with respect to Customary Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitmentsbridge or similar loan or facility or revolving credit facilities, the Additional Term B Commitments Loans shall have a Weighted Average Life to Maturity equal to or greater than the Additional Revolving Credit Commitments, then remaining Weighted Average Life to Maturity of the Term B-78 Loans; (viiivii) the interest rate and amortization schedule applicable to margins for the Additional Term A Commitments and the Additional Term B Commitments Loans shall be determined by the Borrower and the lenders thereof Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any floating rate, Dollar-denominated syndicated Additional Term Loans (other than with respect to Customary Term A Loans or revolving credit facilities) incurred within twenty-four (24) months after the Amendment No. 8 Effective Date (other than (x) any Additional Term Loans established for the primary purposes of financing a Permitted Acquisition or other Investment and (y) Additional Term Loans in an aggregate amount not to exceed the -72- greater of (i) $725.0 million and (ii) an amount equal to 100% of Consolidated Cash Flow Available for Fixed Charges for the Four Quarter Period) is greater than the Weighted Average Yield for the Term B-78 Loans by more than 50 basis points, then the Applicable Rate for the Term B-78 Loans shall be increased to the extent necessary so that the Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the Weighted Average Yield for the Term B-78 Loans; (viii) all other terms of the Additional Term Loans (other than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms applicable to the Term B-78 Loans (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent (it being understood and agreed that any Customary Term A Loans and revolving credit facilities may have one or more financial compliance covenants and such covenant shall not be determined to be more restrictive); (ix) the Additional Term A Loans security interest and guaranties benefiting the Additional Term B Loans shall (and advances of credit thereunder) will rank pari passu in right of payment and of security with the Revolving Credit existing credit facilities provided for herein; and (x) any Additional Term Loans shall share on a pro rata basis in any mandatory prepayments with the Term B-78 Loans (other than any mandatory prepayment resulting from the incurrence of Refinancing Term Loans or Refinancing Equivalent Debt that is incurred to refinance a specific Class of Loans) or, if agreed to by the lenders of Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis).
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, Borrower shall deliver to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by an Authorized Officer of Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), the condition set forth in Section 2.14(a)(iv) is satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan to Borrower in a principal amount equal to such Person’s Additional Commitment.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the Incremental Cap.
(e) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the terms and conditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (a)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) (if such Incremental Equivalent Debt is in the form of term “B” loans secured on a pari passu basis with the Term B- 78 Loans.) and (a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the
(f) This Section 2.14 shall supersede any provisions in Section 3.06 or Section 10.01
Appears in 1 contract
Samples: Amendment Agreement (Avient Corp)
Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon Upon notice to the Administrative Agent, at any time after Agent (which shall promptly notify the Closing DateLenders), the Borrower may request one or more Additional request: additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary 102
(it being understood and agreed that b) Any loans made in respect of any such additional Term Commitments (ithe “Incremental Term Loans”) may be made, at the election option of the Borrower, such additional commitments in respect of any term loans may be implemented through either by (i) increasing the addition of additional new tranches of such loans instead of being implemented Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as increases in the applicable Commitments and existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (ii) if the Borrower makes such election, the provisions creating a new tranche of this Section shall be read in a manner that permits such election to be implementedterms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (xA) shall not mature prior to the final maturity stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of any incurrence of such new tranche of term loans shall be no earlier than the Maturity Date for the Incremental Term A Loans and Loans, (yB) the Weighted Average Life to Maturity of any such new tranche of term loans Incremental Term Loan Class shall be no shorter less than the remaining Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term A 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.
(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 that the (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans such Incremental Revolving Facility shall be no earlier than the Maturity Date for final maturity date of the Term A LoansInitial Revolving Credit Facility, (ivii) 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 Additional Term B Loans shall be no 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 than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the Additional “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 any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (viiiA) the representations and warranties contained in Article 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 103
(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 Agreement and the other Loan Documents, and (B) shall make an Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate and amortization schedule applicable to the Additional any Incremental Term A Commitments and the Additional Term B Commitments shall Loans will be determined by the Borrower and the lenders thereof and providing such Incremental Term Loans; provided that (ixi) in the Additional case of any such Incremental Term A Loans and denominated in Dollars that are secured by the Additional Term B Loans shall rank Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In- Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Initial Term Loan and (ii) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the 2022 Incremental Term B-2 Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the 2022 Incremental Term B-2 Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term B-2 Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 2022 Incremental Term B-2 Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any 2022 Incremental Term B-2 Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 2022 Incremental Term B-2 Loan.
(h) Any Incremental Facility, if secured, may be 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 related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party. 104
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility (and for the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Loans 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 Term LoansAdministrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(j) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
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Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to the Administrative Agent, at Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any time after Class and/or (y) commitments (“Additional Term Commitments”) to increase the Closing Date, the Borrower may request aggregate principal amount of any existing Class of Term Loans or to establish one or more Additional new Classes of Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans; provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; the Incremental Cap;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) each of the conditions set forth in Section 4.02 shall be satisfied;
(v) the final maturity date of any Additional Term A Loans shall be no earlier than the Latest Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Term A Loans, Date;
(vi) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(vii) the interest margins for the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof Lenders of such Additional Term Loans; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for Outstanding Term Loans by more than 50 basis points, then the Applicable Rate for such Additional Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for Outstanding Term Loans, and the Applicable Rate for the Initial Revolving Commitments (ixand, to the extent specified in any Additional Credit Extension Amendment for Revolving Commitments of any other Class, such other Class of Revolving Commitments) shall be increased by a like amount;
(viii) the security interest and guaranties benefiting the Additional Term A Loans and/or Additional Revolving Commitments (and the Additional Term B Loans shall advances of credit thereunder) will rank pari passu in right of payment and of security with the existing Facilities; provided that the security interests and guaranties benefiting the Additional Term Loans may rank junior in right of payment or security to the Term Loans incurred on the Closing Date, or such Additional Term Loans may be unsecured, so long as (x) any such Additional Term Loans are established as a separate sub-facility from the Term Loans incurred on the Closing Date and (y) any such Additional Term Loans ranking junior in right of payment or security will be subordinated on the terms set forth in a Junior Lien Intercreditor Agreement;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Outstanding Term Loans or, if agreed to by the lenders of Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Credit Commitment shall be on the same terms and pursuant to documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be pursuant to documentation applicable to the Outstanding Term LoansLoans and on terms to be determined, provided that, to the extent such terms are not consistent with the Outstanding Term Loans (except to the extent permitted by clause (v), (vi), (vii) or (ix) above), they shall be reasonably satisfactory to the Administrative Agent.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(b), the representations and warranties contained in Sections 3.04(a), (b) and (c) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 5.01(a) and (b), as applicable, (ii) subject to the second to last sentence of Section 4.02, no Default or Event of Default exists and (iii) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments are fully drawn and without netting the cash proceeds of any Additional Commitments in calculating the First Lien Net Leverage Ratio) as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been or were required to have been delivered pursuant to Section 5.01(a) or (b) (only if such Financial Performance Covenant would be applicable at the time).
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
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Increase in Commitments. (a) So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon The Borrower may by written notice to Administrative Agent elect to seek commitments (“Additional Commitments”) to increase the Administrative Agent, at aggregate principal amount of any time after the Closing Date, the Borrower may request existing Class of Loans or to establish one or more new Classes of Loans (“Additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments (it being understood and agreed that Loans”); provided that:
(i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented; provided that (x) the final maturity date of any such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; the Incremental Cap;
(ii) any such addition increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof (thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso), ;
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) each of the following conditions required to be set forth in the applicable Additional Credit Extension Amendment shall have been satisfied;
(v) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date of the Term B-5 Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Term B-5 Loans;
(vii) the interest margins for the Additional Term Loans shall be determined by Borrower and the Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any Additional Term Loans is greater than the Weighted Average Yield for the Term A LoansB-5 Loans by more than 50 basis points, (iv) then the final maturity date of any Additional Applicable Rate for the Term B B-5 Loans shall be no earlier increased to the extent necessary so that the Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the Maturity Date Weighted Average Yield for the Term B B-5 Loans, ;
(vviii) the weighted average life to maturity all other terms of the Additional Term A Loans shall be no shorter (other than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the remaining weighted average life to maturity terms of the Term A Loans, B-5 Loans (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the lenders thereof and Administrative Agent;
(ix) the Additional Term A Loans security interest and guaranties benefiting the Additional Term B Loans shall (and advances of credit thereunder) will rank pari passu in right of payment and of security with the Revolving Credit existing credit facilities provided for herein; and
(x) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Term B-5 Loans or, if agreed to by the lenders of Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis).
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, Borrower shall deliver to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by an Authorized Officer of Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), the condition set forth in Section 2.14(a)(iv) is satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan to Borrower in a principal amount equal to such Person’s Additional Commitment.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the Incremental Cap.
(e) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the terms and conditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (a)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) (if such Incremental Equivalent Debt is in the form of term loans secured on a pari passu basis with the Term B-5 Loans) and (a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the avoidance of doubt, the interest rate, upfront fees and original issue discount for any Incremental Equivalent Debt shall be as determined by the Borrower), (ii) the covenants, events of default, guarantees and other terms of such Incremental Equivalent Debt shall be customary for similar debt instruments in light of then-prevailing market conditions at the time of issuance and in any event not materially more restrictive, taken as a whole, to the Borrower and the other Restricted Subsidiaries than those set forth in this Agreement (other than with respect to interest rate and redemption provisions), except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of issuance, it being understood that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent prior to or at the incurrence of such Incremental Equivalent Debt, together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions of the Incremental Equivalent Debt satisfy the requirement set forth in this clause (e), shall be conclusive evidence that such terms and conditions have been satisfied, (iii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iv) in the case of Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (v) if such Incremental Equivalent Debt is secured, such Incremental Equivalent Debt shall be subject to an applicable Intercreditor Agreement, and (vi) the terms of such Incremental Equivalent Debt do not provide for any scheduled amortization or mandatory repayment, mandatory redemption, mandatory offer to purchase or sinking fund obligation prior to the date that is 91 days after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Equivalent Debt, other than customary prepayments, repurchases or redemptions of or offers to prepay, redeem or repurchase upon a change of control, asset sale event or casualty or condemnation event, customary prepayments, redemptions or repurchases or offers to prepay, redeem or repurchase based on excess cash flow (in the case of loans) and customary acceleration rights upon an event of default.
(f) This Section 2.14 shall supersede any provisions in Section 3.06 or Section 10.01 to the contrary. The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of “Additional Credit Extension Amendment” but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and Borrower, to effect the provisions of this Section 2.14.
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Samples: Amendment Agreement (Polyone Corp)
Increase in Commitments. The Borrower may by written notice to the Administrative Agent elect to add one or more incremental term loan facilities hereunder (aeach, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”; the Incremental Term Facilities are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities shall not (as of any date of incurrence thereof) So 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 Default 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 exceed 2.753.25:1.00, with the Borrower electing whether such Incremental Facility have been incurred (in whole or Event in part) under clauses (x), (y) and/or (z) in its sole discretion (collectively, the “Incremental Cap”); provided, further, 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 Default related but substantially concurrent transactions, then the 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 occurred 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 is continuing (2) any Incremental Facilities originally designated as incurred pursuant to clauses (x) or would result therefrom(y) above may be reclassified at a later date, upon as the Borrower may elect in a written notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term A Commitments, one or more Additional Term B Commitments, or one or more Additional Revolving Credit Commitments as incurred under clause (it being understood and agreed that (iz) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) above if the Borrower makes 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 provisions 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 read in a manner an aggregate principal amount that permits is not less than $10,000,000. Each such election to be implemented; provided that notice shall specify (x) the final maturity date of any such new tranche of term loans (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Facility shall be no earlier effective, which shall be a date not less than five (5) Business Days after the Maturity Date for date on which such notice is delivered to the Term A Loans Administrative Agent and (y) the Weighted Average Life identity of each Eligible Assignee to Maturity whom the Borrower proposes any portion of any such new tranche Incremental Facility be allocated and the amounts of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans)such allocations; provided that (i) after giving effect any existing Lender approached to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 provide all or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Maturity Date for the Term A Loans, (iv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity a portion of the Additional Term A Loans shall be no shorter than the remaining weighted average life Incremental Facility may elect or decline, in its sole discretion, to maturity provide such portion of the Term A Loans, (vi) the weighted average life to maturity of the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and (ix) the Additional Term A Loans and the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term LoansIncremental Facility.
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