Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that: (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”); (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i); (iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date; (iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same; (vi) no existing Lender shall be required to provide any Additional Commitments; (vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof; (viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 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: First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), at any time after the Closing Date, the Company may on up to seek (x) commitments (“Additional ten different occasions request additional Term Commitments and/or 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16 shall not exceed the sum of (A) after the Amendment No. 1 Effective Date$600,000,000, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class addition 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.
(b) Any loans made in respect of any such additional Term Commitments (the "ADDITIONAL TERM LOANS") may be made, at the option of the Company, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an "ADDITIONAL TERM LOAN TRANCHE"); provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans Loan Tranche (A) shall be no earlier than not mature prior to the Latest stated Maturity Date;
Date and (ivB) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional Term Loans Loan Tranche shall be determined by no less than the Borrower and the lenders Weighted Average Life to Maturity of the Additional Term Loans; provided that .
(c) Any such additional Revolving Credit Commitments (the "ADDITIONAL REVOLVING CREDIT COMMITMENTS") may be made, at the option of the Company, by either (i) increasing the US Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments with respect the same terms (including pricing and currency) as the existing US Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as the case may be or (ii) creating a new tranche of the Multicurrency Revolving Credit Facility with the Additional Revolving Credit Commitments of Lenders willing to any fund in an Additional Alternative Currency pursuant to which Multicurrency Revolving Credit Loans under such new tranche may be denominated in such Additional Alternative Currency.
(d) At the time of the sending of notice requesting additional Term Loans incurred prior Commitments and/or additional Revolving Credit Commitments, the Company (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 date that is 18 months after Lenders). Each Lender shall notify the Amendment No. 1 Effective DateAdministrative Agent within such time period whether or not it agrees to provide an additional Term Commitment or Revolving Credit Commitment, (x) in the event that the Applicable Rate for any as applicable, and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees 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 constitute like amounts have declined to provide an additional Term Commitment or Revolving Credit Commitment, as applicable. The Administrative Agent shall notify the Company and each Lender of OID) payable by the Borrower Lenders' responses to each request made hereunder. To achieve the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loansfull amount of a requested increase, the Eurodollar Rate “floor” Company may also invite additional Eligible Assignees to become Term Lenders or Base Rate applicable Revolving Credit Lenders, as applicable, pursuant to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower a joinder agreement in form and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 substance reasonably acceptable satisfactory to the Administrative Agent and its counsel.
(ye) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the identity Administrative Agent and the Company shall determine the effective date (the "ADDITIONAL COMMITMENTS EFFECTIVE DATE") and the final allocation of such addition. The Administrative Agent shall promptly notify the Company and the Lenders of the Persons (each final allocation 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 such addition and the Additional Commitments and the portion of the Additional Commitment to be provided by each such PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the Borrower Company shall deliver to the Administrative Agent a certificate of the Company dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower Company certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (i) the representations and warranties contained in Article V 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 2.16(b2.16(e), the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection subsections (a) and (b), respectively, of Section 6.01 6.01, and (ii) no Default exists before or Event of Default exists. after giving effect to such addition.
(f) On each Additional Commitments Effective Date with respect to any Additional Term CommitmentDate, (i) each Person with Lender or Eligible Assignee which is providing an Additional 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 Company in a principal amount equal to such Person’s Additional 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 2.16(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 Loan 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 a "Term Loan" for all purposes of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as (except that the interest rate applicable to any Additional Term Loan under an Additional Term Loan Tranche may be necessary as agreed by the Company and the applicable Lenders providing the additional Term Commitments) and (ii) each Lender or appropriate, Eligible Assignee which is providing an additional Revolving Credit Commitment shall become a "Revolving Credit Lender" for all purposes of this Agreement and the other Loan Documents with a Revolving Credit Commitment that is increased by (in the reasonable opinion case of an existing Revolving Credit Lender) or equal to (in the Administrative Agent and the Borrower, to effect the provisions case of this Section 2.16a new Revolving Credit Lender) such additional Revolving Credit Commitment.
(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 (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Increase in Commitments. (a) The Borrower may from time to time add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by written notice to an agreement in writing entered into by the Borrower, the Administrative Agent elect and each Person (including any existing Lender) that agrees to seek provide a portion of such Incremental Facility (x) commitments (“Additional Revolving Credit Commitments”) to increase and, for the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase avoidance of doubt, shall not require the aggregate principal amount consent of any existing Class of Term Loans or to establish one or more new Classes of Term Loansother Lender) (each an “Incremental Facility Amendment”); provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (ya) the aggregate principal amount of Junior Lien Indebtedness incurred all Incremental Facilities established under this Section 7.02(b)(i2.16 shall not exceed the sum of:
(i) less $175,000,000; plus
(zii) after the aggregate principal Delayed Draw Term A Loan Termination Date, an unlimited amount so long as, in the case of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Aii), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, after giving effect to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 relevant Incremental Facility on a Pro Forma Basis as Basis, the Consolidated Secured Net Leverage Ratio does not exceed the lesser 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 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, 3.00:1.00 and (y) excluding the Consolidated Secured Net Leverage Ratio of the Borrower as of the Delayed Draw Term A Loan Termination Date (which amount shall be no less than 1.60:1.00) (the “Incremental Incurrence Ratio”) (assuming the full amount of such Incremental Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower); provided that any Incremental Facility may be incurred under either sub-clauses (i) or (ii) of this clause (C), a) as selected by the “Borrower in its sole discretion and if any Incremental Ratio Exception”);
Facility is intended to be incurred in part under both sub-clauses (i) and (ii) any then the permissibility of the portion of such increase or any new Class Incremental Facility to be incurred under sub-clause (ii) shall first be in an aggregate amount determined without giving effect to the portion 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 Incremental Facility incurred under the limit set forth in the preceding sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(iiib) no Default or Event of Default shall exist on the final maturity effective date of any Additional Term Loans shall be no earlier than the Latest Maturity DateIncremental Facility or would exist after giving effect to any Incremental Facility;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vic) no existing Lender shall be required under any obligation to provide any Additional CommitmentsIncremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(viid) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments each Incremental Facility shall be determined by in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the Borrower case of an Incremental Revolving Increase, and at least $1,000,000 in the lenders thereofcase of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(viiie) the Additional Term Loans each Person providing an Incremental Facility Commitment shall rank pari passu in right of payment and security with the existing Loans; andqualify as an Eligible Assignee;
(ixf) 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 Agent:
(i) a certificate of each Loan Party dated as of the Additional Commitments Effective Date date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the Borrower board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (i1) the representations and warranties of each Loan Party contained in Article V and the or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the Additional Commitments Effective Datedate of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 2.16(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 (ii2) no Default or Event of Default exists. On exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Additional Commitments Effective Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent, in consultation with the Borrower, shall have determined whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term A Loans and (2) the final maturity date of any Additional then outstanding Incremental Tranche A Term Commitment, each Person with an Additional Loan; and
(B) the Weighted Average Life of such Incremental Term Commitment Facility shall make an Additional not be shorter than the then remaining Weighted Average Life of the Term A Loan or any then outstanding Incremental Tranche A Term Loan;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term A Loan and any then outstanding Incremental Tranche A Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Facility) and shall have ratable voting rights as the Term A Facility (or otherwise provide for more favorable voting rights for the Term A Facility); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Borrower Term A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in a principal amount equal to the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Person’s Additional Incremental Term Commitment. The Borrower Facility shall prepay any Revolving Credit Loans outstanding on be as agreed by the Additional Commitments Effective Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any Additional Revolving Credit Commitment then outstanding Incremental Tranche B Term Loan; provided that in the event the Term B Loans are no longer outstanding, the final maturity of such Incremental Tranche B Term Loan shall not be earlier than the Maturity Date with respect to the Term A Loans;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than 50 basis points per annum, then the Applicable Rate or fees payable by the Borrower with respect to the Term B Loan and pay any additional amounts required pursuant to Section 3.05) each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to keep cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be not more than 50 basis points less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrower);
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in under the Revolving Credit Commitments. If there is a new Borrowing of Facility to the Lenders providing such Incremental Revolving Credit Commitments on Increase and the Administrative Agent may make such Additional Commitments Effective Dateadjustments to the Register as are necessary so that, the Revolving Credit Lenders after giving effect to such Additional assignments and adjustments, each Lender under the Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
Facility (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 including the Lenders providing such Additional Term Commitments Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viiil) 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 Borrower shall be reasonably satisfactory have delivered to the Administrative Agent.
Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (dwithout “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) The Additional Commitments the Loan Parties would be in Pro Forma Compliance; provided, further, that the conditions set forth in the foregoing proviso shall be documented by an Additional subject to the provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extension Amendment executed by Extensions under, and shall be entitled to all the Persons providing the Additional Commitments (benefits afforded by, this Agreement and the other Persons specified in Loan Documents, and shall, without limiting the definition of Additional Credit Extension Amendment but no other existing Lender)foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent to enter into, and the Additional Credit Extension Amendment may provide for such amendments to Lenders agree that this Agreement and the other Loan Documents as may shall be necessary or appropriateamended by, in such Incremental Facility Amendments to the reasonable opinion of extent (and only to the extent) the Administrative Agent and the Borrower, deems necessary in order to establish Incremental Facilities on terms consistent with and/or 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 10.01 to the contrary. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment.
Appears in 2 contracts
Samples: Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc)
Increase in Commitments. (a) The A Borrower may by written notice to the Administrative 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 existing Class of Term Loans or to establish add one or more new Classes of incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that:
that the (i1) the total aggregate amount for all such Incremental Facilities (assuming, for the purposes of all Additional Commitments determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the sum of (A) after $200,000,000 and (B) an amount such that at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect thereto on a pro forma basis the Senior Secured Leverage Ratio is less than or equal to the incurrence of the 2016 Incremental Term B Loans 2.75 to 1.00 and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y2) the total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) $25,000,000 or, if less, the aggregate principal remaining amount of Incremental Notes incurred under Section 7.02(v)(A) (permitted pursuant to the amount in this foregoing clause (A1), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the such Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the such Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion of the Additional Commitments Effective Date signed by a Responsible Officer of Incremental Facility. Notwithstanding the Borrower certifying thatforegoing, 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 no 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) notice shall be deemed to refer to required in connection with the most recent financial statements furnished Incremental Facilities provided pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default existsAmendment No. 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)2.
(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 2.16(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 (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Increase in Commitments. (a) At any time prior to the Business Day immediately preceding the Maturity Date, the Borrower may effectuate one or more increases in the aggregate Commitments (each such increase being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any existing Lender, to increase its Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided, however, that (i) each such Commitment Increase shall be equal to at least $5,000,000, (ii) all Commitments and Advances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Commitments and Advances except as to upfront fees which may be as agreed to between the Borrower and such Increasing Lender or Additional Lender, as the case may be, (iii) the aggregate of all such Commitment Increases shall not exceed an amount equal to the sum of $100,000,000, and (iv) such Commitment Increase shall not effect an increase in the aggregate Commitments if the Maturity Date has occurred. The Borrower may by written shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.15 to the Administrative Agent elect and the Lenders. This Section 2.15 shall not be construed to seek (x) commitments (“Additional Revolving Credit Commitments”) create any obligation on the Administrative Agent or any of the Lenders to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans advance or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect commit to advance any credit to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior Borrower or to arrange for any other Person to advance or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to commit to advance any credit to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 LoansBorrower.
(b) Each such notice The Commitment Increase shall specify (x) become effective on the date (each, an the “Additional Commitments Effective Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the Borrower proposes that receipt by the Additional Commitments shall be effective, which shall be a date Administrative Agent of (A) an agreement in form and substance reasonably acceptable satisfactory to the Administrative Agent signed by the Borrower, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender and (yB) such evidence of appropriate authorization on the part of the Borrower and the Guarantors with respect to such Commitment Increase and such legal opinions as the Administrative Agent may reasonably request, (ii) the identity funding by each Increasing Lender and Additional Lender 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 Revolving Advances to be provided made by each such Person. As a condition precedent Lender to effect the effectiveness of any Additional Commitmentsprepayment requirement set forth in Section 2.4(c)(iii), the Borrower shall deliver to (iii) receipt by the Administrative Agent of a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer an authorized officer of the Borrower certifying that, (A) both before and after giving effect to the Additional Commitments (such Commitment Increase, no Default has occurred and assuming full utilization thereof)is continuing, (iB) the all representations and warranties contained made by the Borrower in Article V and the other Loan Documents this Agreement are true and correct in all material respects on and as of the Additional Commitments Effective Daterespects, except to the extent that unless such representations and warranties specifically refer representation or warranty relates to an earlier date, in date which case they shall have been remains true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b)(C) the pro forma compliance with the covenants in Sections 6.16 and 6.17, 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 Commitment Increase, and (iv) receipt by the Increasing Lender or Additional Revolving Credit Commitments shall make Lender, as applicable, of all such Revolving Credit Loans in accordance with Section 2.01(b)fees as agreed to between such Increasing Lender and /or Additional Lender and the Borrower.
(c) Any other terms On such Increase Date, each Lender’s share of the Letter of Credit Exposure and documentation entered into participations in respect of any Additional Term Commitments Swing Line Advances on such date shall automatically be on terms deemed to equal such Lender’s Pro Rata Share of such Letter of Credit Obligations 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 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation participations in respect of any Additional Term Loans are not consistent with those Swing Line Advances (such Pro Rata Share for such Lender to be determined as 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 Increase Date in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for accordance with its Commitment on such amendments to this Agreement and the other Loan Documents date as may be necessary or appropriate, in the reasonable opinion a percentage of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16aggregate Commitments on such date) without further action by any party.
(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 (Hi-Crush Partners LP), Credit Agreement (Hi-Crush Partners LP)
Increase in Commitments. (a) The At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase request the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatestablishment of:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of one or more incremental term loan commitments (A) after the Amendment No. 1 Effective Dateany such incremental term loan commitment, and after giving effect to the incurrence of the 2016 an “Incremental Term B Loans and Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the 2016 Revolving Commitments (any such increase, an “Incremental Revolving Credit Commitment IncreaseCommitment” and, (x) $75,000,000 less (y) together with the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)Term Loan Commitments, the “Incremental Dollar BasketLoan Commitments”)) to make additional revolving credit loans under this Agreement (any such increase, plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of an “Incremental Revolving Credit Commitments prior to or simultaneous Increase” and, together with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Incremental Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C)Loans, the “Incremental Ratio ExceptionLoans ”);
; provided that (ii1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any such increase or any new Class date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increased Amount Date”) on which the Borrower proposes that the Additional Commitments any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably acceptable satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and (y) the identity of the Persons (each of which Lenders 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 have received from the Borrower proposes would provide the Additional Commitments a Pro Forma Compliance Certificate demonstrating, in form and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver substance reasonably satisfactory to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of Agent, that the Borrower certifying thatis in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to the Additional Commitments (and assuming full utilization thereof)x) any Incremental Loan Commitment, (iy) the representations making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and warranties contained (z) any Permitted Acquisition consummated in Article V and the other Loan Documents are true and correct in all material respects on and as connection therewith;
(C) each 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) 6 shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 true and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitmentcorrect in all material respects, 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 2.16(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 any such representation and warranty is qualified by Section 2.16(a)(iiimateriality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), (iv)such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, (v)the Incremental Lenders making such Incremental Term Loan and the Borrower, (vii)but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, (viii) or (ix) above) they all other terms and conditions applicable to any Incremental Term Loan 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.;
(eG) This Section 2.16 in the case of each Incremental Revolving Credit Increase (the terms of which shall supersede any provisions be set forth in Section 2.13 or Section 11.01 to the contrary.a Lender joinder agreement):
Appears in 2 contracts
Samples: Credit Agreement (Cree Inc), Credit Agreement (Cree Inc)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary Guarantor (y) commitments (each, an “Additional Term CommitmentsIncremental Facility”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansIncremental Joinder; provided that:
(i) that after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed be incurred in compliance with the sum requirements of the Incremental Cap, tested at the time of incurrence 104
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as the existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) after the Amendment No. 1 Effective Date, and after giving effect shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of the 2016 such Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment IncreaseLoans, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments the Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary commitment reductions 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 prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case may be made by (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause establishing one or more additional Classes of revolving credit commitments (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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the an “Incremental Ratio ExceptionRevolving Facility”);
(ii) any such 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; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans such Incremental Revolving Facility shall be no earlier than the Latest Maturity Date;
final maturity date of the Initial Revolving Credit Facility, (ivii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Additional Term Loans shall have final maturity date of the Initial Revolving Credit Facility and (iii) any Incremental Revolving Facility may participate on a Weighted Average Life to Maturity equal to pro rata basis or a less than pro rata basis (but not a greater than the then remaining Weighted Average Life pro basis) in any reduction or termination as compared to Maturity of each earlier maturing Revolving Credit Commitments or (y) increasing any Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans Revolving Credit Commitments (the “Outstanding 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 LoansLenders 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.
(ve) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Applicable Rate with respect to any Additional Term Loans Administrative Agent and the Borrower shall be determined by 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 Loans; provided that with respect to any Additional Term Loans incurred prior to final allocation thereof and the date that is 18 months after the Amendment No. 1 Incremental Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 thatsuch addition, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (iA) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Additional Commitments Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except (B) no Event of Default exists after giving effect to such addition (or, in the case incurred to fund a Permitted Acquisition, no Specified Event of Default exists after giving effect to such addition); provided that notwithstanding anything to the 105
(f) On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loan Class (A) shall become a “Term Lender” for all purposes of this Section 2.16(b)Agreement and the other Loan Documents, 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 (iiB) 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 Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such Person’s Additional additional Term Commitment. The Borrower , and such Incremental Term Loan shall prepay any 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 applicable to any Incremental Term Loans outstanding will be determined by the Borrower and the lenders providing such Incremental Term Loans; provided that (i) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Additional Commitments Effective Date Initial Term Loans in right of payment and with respect to any Additional Revolving Credit Commitment security (and pay any additional amounts required pursuant to Section 3.05other than customary bridge loans) to with a final maturity date that is less than 24 months after 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 Initial Term Loan Maturity Date, the Revolving Credit Lenders after giving effect 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 Additional Revolving Credit Commitments Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall make 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 Revolving Credit 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 accordance right of payment and with Section 2.01(brespect 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.
(ch) 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 documentation entered into in respect of any Additional Term Commitments prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation agreed to be determined between the Borrower and the Lenders lenders providing such Additional Term Commitments Incremental Facility (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), for the 106
(iv), (v), (vii), (viiij) or (ix) above; provided that to the extent such other terms and documentation in respect The proceeds 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 Incremental Facility may be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed used by the Persons providing Borrower and its Subsidiaries for working capital and other general corporate purposes, including the Additional Commitments (financing of permitted acquisitions and the other Persons specified in the definition of Additional Credit Extension Amendment but no Investments and any other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to use not prohibited by 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 2.16Agreement.
(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 (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect in substantially the form of Exhibit J, request that the total Commitments be increased by an aggregate amount not to seek exceed $1,500,000,000; provided that the Borrower may not make more than 3 such requests. Such notice shall set forth the amount of the requested increase (xwhich shall be in a minimum amount of $500,000,000 and in minimum increments of $10,000,000 above that amount) commitments and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Commitment Termination Date). Upon the receipt of such request by the Administrative Agent, the Administrative Agent shall give notice promptly to each Bank substantially in the form of Exhibit K, which notice will offer each such Bank the opportunity to increase its Commitment by its applicable Pro Rata Share of the proposed increased amount. Each such Bank shall, by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit L, given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Bank so agreeing being an “Additional Revolving Credit CommitmentsIncreasing Bank”) or decline to increase the Revolving Credit Commitments and/or its Commitment (y) commitments (“Additional Term Commitments”) and any Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate principal amount of any existing Class of Term Loans or to establish less than the increase requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Bank”), which may include any Bank, to extend Bank Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute a joinder substantially in the form of Exhibit M or such other documentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any such increase may be made in an amount that is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Banks. The Borrower and the Administrative Agent shall execute an amendment to Schedule 1 evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.8, the outstanding Loans (if any) are held by the Banks in accordance with their new Classes applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of Term Loans; provided that:
the Administrative Agent, following consultation with the Borrower, (i) by requiring the aggregate amount outstanding Loans to be prepaid with the proceeds of a new Loan, (ii) by causing Non-Increasing Banks to assign portions of their outstanding Loans to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all Additional principal and interest and fees accrued as to such Loans up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.5, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Commitments shall not exceed become effective under this Section 2.8 unless (i) on the sum date of such increase, (A) after no Default shall have occurred and be continuing or will result from the Amendment No. 1 increase in Commitments as set forth herein and (B) the representations and warranties made by the Borrower in Section 8 shall be true and correct on and as of the date of the increase in Commitments with the same force and effect as if made on and as of such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date), (ii) the Borrower Debt Ratings assigned by S&P and Xxxxx’x to the Index Debt shall be equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Effective Date, and Date (after giving effect to the incurrence of the 2016 Incremental Term B Loans and Commitment increase or Loans, as the 2016 Incremental Revolving Credit Commitment Increasecase may be), (x) $75,000,000 less (yiii) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(iAdministrative Agent shall have received a compliance certificate certifying and showing (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Administrative Agent) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause that (A), ) each of the “Incremental Dollar Basket”), plus conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (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 on a historical pro forma basis (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, after giving effect to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below)incurrence of the Commitment increase or Loans, 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 case may be) as of the last day of the most recently ended period of four consecutive fiscal quarters for which completed Fiscal Quarter with respect to which, pursuant to Section 9.1, financial statements have been, or are internally availablerequired to have been, delivered by the Borrower, the Borrower would be in compliance with Section 9.10 as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C), available under such Additional Commitments had been outstanding on of 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, fiscal quarter and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans Administrative Agent shall have a Weighted Average Life received all fees 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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 mutually 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 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 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 Honda Finance Corp), Credit Agreement (American Honda Finance Corp)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (xA)(x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i7.02(b)(ii) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 clause (C)applicable, 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)Commitment, 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 second anniversary of the Amendment No. 1 Effective 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 Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be 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 Applicable Rate for the Term B Loans Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 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 1 contract
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) The If no Default, Event of Default or Material Adverse Effect shall have occurred and be continuing, the Borrower may at any time during the Availability Period request an increase of the Commitments of up to an additional $50,000,000 (the “Additional Commitment”) by written notice to the Administrative Agent elect to seek in writing of the amount of such proposed increase (xsuch notice, a “Commitment Increase Request”); provided, however, that, in the event such Commitment Increase Request is approved as described in paragraph (b) commitments below, (“Additional Revolving Credit Commitments”i) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal minimum amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
such increase shall be $10,000,000 and (iii) the aggregate amount of all Additional the Lenders’ Commitments shall not exceed $175,000,000.
(b) Any such Commitment Increase Request shall first be made to the sum Administrative Agent in its capacity as a Lender. The Administrative Agent, as a Lender, may agree to increase its Commitment or not in its sole discretion and shall notify the Borrower of such determination and, if such request for an increase is approved, the portion of the Additional Commitment that will be provided by the Administrative Agent, in its capacity as a Lender, within 30 days of the receipt thereof.
(Ac) In the event the Administrative Agent, in its capacity as a Lender, elects not to increase its Commitment by the full amount of the Additional Commitment, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld, conditioned or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the opportunity to participate in the remaining portion of the Additional Commitment pursuant to paragraph (d) or (e) below, as applicable, by notifying the Administrative Agent and such proposed lenders of the opportunity to participate in the remaining portion of such unsubscribed portion of the Additional Commitment.
(d) Any additional bank or financial institution that the Borrower selects to offer participation in the Additional Commitment shall execute and deliver to the Administrative Agent a New Lender Agreement setting forth its Commitment, and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed amended to increase the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Commitment of any New Lender shall be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders or increasing Lenders.
(e) Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall execute a Commitment Increase Agreement with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed to be amended to reflect such increase. Any Commitment Increase Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders and increasing Lenders.
(f) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(g) If any bank or financial institution becomes a New Lender pursuant to Section 2.20(c) or any Lender’s Commitment is increased pursuant to Section 2.20(d), additional Loans made on or after the Amendment No. 1 Effective effectiveness thereof (the “Re-Allocation Date, and ”) shall be made pro rata based on their respective Commitments in effect on or after giving effect such Re-Allocation Date (except to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the extent that any such pro rata borrowings would result in any Lender making an aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal Loans in excess of its Commitment, in which case such excess amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)will be allocated to, the “Incremental Dollar Basket”)and made by, plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit such New Lender and/or Lenders with such increased Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans of, and Additional Revolving Credit Commitments were obtained pursuant to clause (C) belowpro rata based on, their respective Commitments), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio and the Consolidated Net Leverage Ratio, determined continuations of Loans outstanding on a Pro Forma Basis as such Re-Allocation Date shall be effected by repayment of such Loans on the last day of the most recently ended period Interest Period applicable thereto or, in the case of four consecutive fiscal quarters for which financial statements are internally availableABR Loans, as if on the date of such increase, and the making of new Loans of the same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(h) If on any Additional Term Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans or Additional Revolving Credit Commitments, as shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to prepay any thereof in accordance with the applicable and in either case incurred pursuant to provisions of this clause (CAgreement), available under and interest on and repayments of such Additional Commitments had been outstanding Eurodollar Loans will be paid thereon to the respective Lenders holding such Eurodollar Loans pro rata based on the last day respective principal amounts thereof outstanding.
(i) Upon the effectiveness of such periodany Commitment Increase Agreement, and, in each case (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause (CSection 2.09(b), assuming a borrowing of Schedule 2.01 and other pertinent sections hereof shall be automatically and proportionately modified to reflect the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C)increased Commitment, the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life exact figures 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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Administrative Agent, and all references to 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)amended mutatis mutandis.
(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 2.16(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 1 contract
Samples: Credit Agreement (Stewart Information Services Corp)
Increase in Commitments. (a) The Subject to the terms and conditions set forth herein, after the Amendment No. 4 Effective Date, the Administrative Borrower may shall have the right to request, by written notice to the Administrative Agent, increases in the Legacy Commitments and/or the ETMC Commitments (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement, (iii) each Revolving Commitment Increase with respect to the Legacy Commitments shall be conditioned on receipt by the Administrative Agent elect of an amendment to seek the Relative Rights Agreement, duly executed by each of the applicable parties as required by the terms of the Relative Rights Agreement, to increase both the Cap Amount Floor and the Cap Amount (each as defined in the Relative Rights Agreement) by an amount not less than the amount of such Revolving Commitment Increase and (viv ) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Section 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional increase in the Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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, being requested and (y) excluding whether such increase is requested for the cash proceeds ETMC Commitments or the Legacy Commitments. Upon receipt of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C)a Revolving Commitment Increase Notice, the “Incremental Ratio Exception”);
Administrative Agent may (iiat the direction of the Administrative Borrower) any promptly notify the Lenders under the applicable Revolving Credit Facility and each such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 Lender may (subject to the Administrative Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess thereofof its Applicable Pro Rata Share in its discretion if any other Lender declines to participate in the Revolving Commitment Increase) of the requested increase in Commitments; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of each applicable Lender may elect or decline, in its sole discretion, to have its Commitment increased in connection with any Additional Term Loans requested Revolving Commitment Increase, it being understood that no Lender shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have obligated to increase its Commitment unless it, in its sole discretion, so agrees and, if a Weighted Average Life Lender fails 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 respond to any Additional Term Loans shall be determined by the Borrower and the lenders Revolving Commitment Increase Notice within ten (10) Business Days after such Lender’s receipt 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 Amendment No. 1 Effective Datesuch request, (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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which Lender shall be deemed to constitute like amounts of OIDhave declined to participate in such Revolving Commitment Increase; (ii) payable by the Borrower if any Lender declines to the lenders providing such Additional Term Loans or such Outstanding Term Loans participate in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Additional Term Loans Revolving Commitment Increase, or Outstanding Term Loans if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and commitments of additional lenders are sought in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment shall be excludedsubject to the written consent of the Administrative Agent and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld or delayed), in each case, if such consent would be required pursuant to Section 11.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(viiv) no existing L/C Issuer or Swing Line Lender shall be required to provide act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Additional Commitments;Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Administrative Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) (x) no Default or Event of Default would exist after giving effect thereto or (y) if the Revolving Commitment Increase is used to finance a Permitted Acquisition or Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (4) the representations and warranties contained in Article VI shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date; provided that, if the Revolving Commitment Increase is used to finance a Permitted Acquisition or a Permitted Investment, the representations and warranties shall be subject to customary “Sungard” limitations; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(viic) subject On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.14, (i) the Administrative Agent shall effect a settlement of all outstanding Loans under the applicable Revolving Credit Facility among the applicable Lenders that will reflect the adjustments to clause the Commitments under the applicable Revolving Credit Facility of the applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv)) Revolving Credit Notes will be issued, at the amortization schedule expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Additional Term Commitments Revolving Commitment Increase shall be determined by calculated using the Borrower and same Commitment Fee Rates applicable to the lenders thereof;
existing Loans under the applicable Revolving Credit Facility, (viiiii) the Additional Term Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and (iv) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Loans; and
(ix) Loans under the Additional Term Loans may have optional prepayment terms (including call protection applicable Revolving Credit Facility. Each joinder agreement 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 amendment 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 any Loan Document requested by the Administrative Agent and (y) in connection with the identity establishment of the Persons (each Revolving Commitment Increase may, without the consent 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 any of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional CommitmentsLenders, 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 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 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 reasonably necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.162.14.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(b) have been satisfied, upon notice to Agent (which shall promptly notify the Administrative Agent elect Lenders and the Eligible Financial Institutions), Borrowers may, prior to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the earlier of the Revolving Credit Commitments and/or (y) commitments (“Additional Maturity Date and the Term Commitments”) Loan Maturity Date, from time to time request an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $100,000,000 in the aggregate principal amount of (any existing Class of such increase in the Term Loans or to establish one or more new Classes of Loan Amount, an "Incremental Term Loans; Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the aggregate amount final maturity date of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 any Incremental Term B Loans and Loan shall be no earlier than the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)Loan Maturity Date;
(ii) any such the Revolving Credit Maturity Date shall not be modified by the 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; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i)Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
interest rate margins and, subject to clause (ivi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate above, amortization with respect to any Additional Incremental Term Loans Loan, for any Incremental Loan shall be determined by the Borrower Borrowers and the lenders of the Additional Term Loans; Lenders under such Incremental Loan provided that with if the interest rate margin in respect to of any Additional Term Loans incurred prior to the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that Incremental Loan exceeds the Applicable Rate for any such Additional Term Loans is greater than the Applicable Rate Margin for the Term B Loans by more than 50 basis pointsLoan or the Revolving Loans, as applicable, then the Applicable Rate Margin for the Term B Loans shall be 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 Applicable Rate for the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans Loan or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Revolving Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans as applicable, shall be increased so that the applicable “floor” interest rate margin in respect of such loan is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable equal to the Additional Term Commitments shall be determined by interest rate margin for the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing LoansIncremental Loan; and
(ixiv) except as otherwise provided in this Section 2.3, the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment conditions applicable to any Incremental Loan shall be generally consistent with the terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long Loan, or Revolving Loan, as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments applicable, or as compared otherwise reasonably satisfactory to Term B Loansthe Agent and Borrowers.
(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 from Borrowers pursuant 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)2.3 shall set forth the requested amount and, the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant subject to subsection (a) of this Section 6.01 2.3, proposed terms of the Incremental Loan, and (iiin consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no Default or Event event be less than fifteen (15) Business Days from the date 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 delivery of such notice to the Borrower in a principal Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At 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 Datetime, 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)2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders' and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Any other terms of Incremental Term Loans shall become Term Loans under this Agreement, and documentation entered into in respect of any Additional Term Commitments Incremental Revolving Loans shall be on terms and become Revolving Loans under this Agreement pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments an amendment (including with respect an "Incremental Loan Amendment") to voluntary and mandatory prepayments)this Agreement and, other than as contemplated by Section 2.16(a)(iii)appropriate, (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 Transaction Documents. Subject to Section 13.2, the definition Incremental Loan Amendment may, without the consent of Additional Credit Extension Amendment but no other existing Lender)Lenders, and the Additional Credit Extension Amendment may provide for effect such amendments to this Agreement and the other Loan Transaction 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 2.162.3.
(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: Revolving Credit and Term Loan Agreement (Air Methods Corp)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Closing Date and prior to seek (x) commitments (“Additional Revolving Credit Commitments”) the Term Loan Maturity Date, request on one or more occasions, up to increase three in the aggregate, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and/or from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (yeach of which shall be entitled to agree or decline to participate in its sole discretion) commitments (“Additional Term Commitments”) to increase the in an aggregate principal amount not to exceed $75,000,000; provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
the Administrative Agent in its reasonable discretion. Such notice shall set forth (i) the aggregate amount of all Additional the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (a minimum amount of $10,000,000, with increments of $1,000,000 thereafter), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than 15 days nor more than 60 days after the Amendment Nodate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). 1 Effective Date, and after giving effect Notwithstanding anything contained herein to the incurrence contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans. To the extent that any Lender does not agree to participate within five (5) Business Days of the 2016 date upon which notice is given to it of the right to participate in any such Incremental Term B Loans Loan Commitment or Incremental Revolving Credit Commitment, such Lender shall be deemed to have declined to participate therein.
(b) The Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, available under such Additional Commitments had been outstanding on that, without 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 prior written consent of the maximum amount of Loans available thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
, and (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders weighted average life to maturity 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 Amendment No. 1 Effective 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 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Other Term Loans or exceeds by more than 50 basis points the applicable Class sum of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount the margin then in effect for Term Loans that are SOFR Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “OIDYield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) or upfront or similar fees the margin above the Adjusted Term SOFR on such Other Term Loans (which shall be deemed to constitute like amounts of OID) payable increased by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to amount of any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate “floor” Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement or Base Rate “floor” underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront divided by the lesser of (a) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Outstanding Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term B Loans remain outstanding and such additional rights and provisions shall be increased so that deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the applicable part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The terms of any Incremental Revolving Credit Commitments will be consistent with the terms of the Revolving Loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “floor” is Incremental Amendment”) and furnished to the same;other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(vic) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional All Incremental Term Loans shall rank pari passu in right of payment and security with the existing Loans; and
(ix) the Additional initial 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 guaranteed by 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 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 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 AgentGuarantors.
(d) The Additional Commitments Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (satisfied 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 shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, to effect (ii) the provisions of this Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 2.167.07.
(e) This Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 2.16 3.02 shall supersede apply to any provisions conversion of SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13 or Section 11.01 2.13(b) required to be made after the contrarymaking of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Eastern Co)
Increase in Commitments. (a) The Any Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (x) each, an “Incremental Term Facility”; the commitments (thereunder are referred to as “Additional Revolving Credit Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) to and/or increase the Revolving Credit Commitments and/or (yany such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (1) commitments total aggregate amount for all such Incremental Facilities after the Amendment No. 2 Effective Date (“Additional Term Commitments”assuming, for the purposes of determining each of clauses (A) to increase and (B), in the aggregate principal amount case of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(iIncremental Revolving Increase, the full amount thereof is drawn) the aggregate amount of all Additional Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) after $450,000,000500,000,000 and (B) an amount such that, subject to Section 1.03(e), at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect to thereto on a pro forma basis the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Secured 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 clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case calculated assuming (xi) 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 no proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 Incremental Facility shall be considered Unrestricted Cash and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any amounts incurred under clause (A) concurrently with amounts incurred under clause (B) will not count as Indebtedness for the purposes of calculating the Secured Leverage Ratio in clause (B) at such increase time) is less than or any new Class equal to 3.00 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such 25,000,000 or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the such Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the such Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion of the Additional Commitments Effective Date signed by a Responsible Officer of Incremental Facility. Notwithstanding the Borrower certifying thatforegoing, 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 no 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) notice shall be deemed to refer to required in connection with the most recent financial statements furnished Incremental Revolving Increase provided pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default existsAmendment No. 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)1.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”; the Incremental Term Facilities are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities shall not (as of any date of incurrence thereof) exceed (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or $160,000,000, plus (y) commitments (“Additional Term Commitments”) an amount equal to increase the aggregate principal amount sum of any existing Class all voluntary prepayments of Term Loans or made pursuant to establish one or more new Classes of Term Loans; provided that:
Section 2.08(a), plus (iz) the aggregate an additional unlimited amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Dateso long as, and after giving effect to the incurrence of the 2016 such Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)Facility, the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters Test Period for which financial statements are internally availablewere required to have been delivered pursuant to Section 6.01 (or, if no Test Period has passed, as of the last four quarters ended), in each case, as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C), available under such Additional Commitments Incremental Facility had been outstanding on the last day of such four-quarter period, andshall not exceed 2.50:1.00, with the Borrower electing whether such Incremental Facility have been incurred (in each case whole or in part) under clauses (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 and/or (z) in its sole discretion. Each Class of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (Incremental Facility incurred under this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class Section 2.13 shall be in an aggregate principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be is not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No10,000,000. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower may Borrowers may, by written notice to the Administrative Agent elect and the Arrangers at any time after the Closing Date and prior to seek the Revolving Commitment Termination Date, request on one or more (xbut no more than three) commitments occasions, Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $50,000,000 from one or more Incremental Revolving Credit Lenders which may include any existing Lender (“Additional each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, solely with respect to any Lender holding Incremental Dutch Revolving Commitments, the Foreign Collateral Agent; provided further that after giving effect to such Incremental Revolving Credit Commitments”) to increase , the Total Dutch Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase Commitment shall not exceed 15% of the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
Total Revolving Credit Commitment. Such notice shall set forth (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees being requested (which shall be deemed in minimum increments of $5,000,000 and a minimum amount of $10,000,000, (ii) the date on which such Incremental Revolving Credit Commitments are requested to constitute like amounts become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of OID) payable such notice, unless otherwise agreed to by the Borrower Administrative Agent) and (iii) whether such Incremental Revolving Credit Commitments are to be Incremental Dutch Revolving Credit Commitments or Incremental U.S. Revolving Credit Commitments. Notwithstanding anything contained herein to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to interest be Revolving Commitments and based on an assumed four-year life to maturity) shall be included the terms and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, conditions set forth herein for Revolving Commitments 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Revolving Loans.
(b) Each such notice shall specify (x) the date (each, an “Additional The Borrowers may seek Incremental Revolving Credit 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 from existing Lenders (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders in connection therewith. The Borrowers and each Incremental Revolving Credit Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments shall execute 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 an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Revolving Credit Assumption Agreement shall include 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 thereofinformation required under Section 2.17(a)(i), (iii) and (iii) above. The Administrative Agent shall promptly notify each Lender as to the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the Additional parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, the Total Revolving Commitment shall be increased by the amount of the new Incremental Revolving Commitments Effective Date, except and this Agreement otherwise shall be deemed amended to the extent that such representations (but only to the extent) necessary to reflect the existence and warranties specifically refer to an earlier dateterms of the Incremental Revolving Credit Commitment, in which case they shall have been true and correct in all material respects as of such earlier dateapplicable, and except that evidenced thereby as provided for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) shall be deemed to refer and furnished 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 Commitmentother parties hereto. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional maturity date of each Incremental Revolving Credit Commitment (shall be the Revolving Facility Termination Date. Notwithstanding anything contained herein to the contrary, it is acknowledged and pay any additional amounts required pursuant agreed that all Incremental Revolving Credit Commitments are to Section 3.05) be Revolving Commitments and shall be on the same or, to the extent necessary deemed satisfactory 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 DateAdministrative Agent, 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)substantially similar, terms and conditions set forth herein.
(c) Any Notwithstanding the foregoing, no Incremental Revolving Credit Commitment shall become effective under this Section unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Company, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other terms of closing certificates 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 2.16(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 delivered on 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)Closing Date, and (iii) the Additional Credit Extension Amendment may provide for such amendments to this Agreement and Parties would be in pro forma compliance with 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 covenants set forth in Section 2.13 or Section 11.01 to the contrary7.07, if then applicable.
Appears in 1 contract
Samples: Credit Agreement (Nn Inc)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek request (x) commitments prior to the Revolving Termination Date, an increase to the existing Revolving Commitments under one or more of the Revolving Facilities (“Additional Increased Revolving Credit CommitmentsCommitment”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes of term loan Commitments (each, an “Incremental Term Loans; provided that:
(iLoan Commitment”) the aggregate in an amount of all Additional Commitments shall not less than $100,000,000 individually and in an amount not to exceed the sum of (A) after the Amendment No. 1 Effective Date, Shared Incremental Amount and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (xB) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal an amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of or Increased Revolving Credit Commitments prior to or simultaneous with such that the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Senior Secured Leverage Ratio and the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis is no more than 3.50 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters of the Borrower 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 clause (C), available under such Additional Commitments had been outstanding determined on the last day of applicable Increase Effective Date, after giving effect to any such periodincurrence on a Pro Forma Basis, and, in each case (x) case, with respect to any Additional Increased Revolving Credit Commitment incurred pursuant to this clause (C)Commitments, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Term Loans or Increased Revolving Commitments (provided that, for the avoidance of doubt, any Incremental Term Loans or Increased Revolving Commitments incurred or issued pursuant to clause (B) on any Increase Effective Date on which the Senior Secured Leverage Ratio test in this clause (B) is met shall remain authorized pursuant to clause (B) if such Senior Secured Leverage Ratio test is not met as of any subsequent date). Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which Borrower proposes that the increased or new Commitments shall be effective, which shall be a date not fewer than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Assignee to whom Borrower proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment; provided, further, that any existing Lender that does not respond shall be deemed to have declined to provide such increased or new Commitment.
(b) The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:
(i) each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c), the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Additional Commitmentstransaction.
(c) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments shall be, do not exceed 3.75:1.00 except as otherwise set forth herein or in the Increase Joinder, identical to (i) the Tranche B Term Loans (“Incremental Term B Loans”) or (ii) the Tranche A Term Loans (“Incremental Term A Loans”, and 6.50:1.00, respectively (this clause (C)together with any Incremental Term B Loans, the “Incremental Ratio ExceptionTerm Loans”) (it being understood that Incremental Term Loans may be part of an existing Class of Term Loans); provided that the aggregate principal amount of all Incremental Term A Loans shall not exceed (A) $1,000,000,000 plus (B) an amount equal to the excess, if any, of (x) the amount of Tranche A Term Loans outstanding on the Closing Date less (y) the amount of Tranche A Term Loans outstanding on the applicable Increase Effective Date;
(ii) any such increase or any new Class Loans made pursuant to Incremental Term Loan Commitments shall be rank pari passu in an aggregate amount right of $10,000,000 or any whole multiple payment and 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 security with the limit set forth in the preceding clause (i)Term Loans;
(iii) the final maturity date all terms and provisions (including Maturity Date) of any Additional Term Revolving Loans made pursuant to new Commitments shall be no earlier than identical to the Latest Maturity existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(iv) the Additional weighted average life to maturity of all (x) Incremental Term B Loans shall be no shorter than the weighted average life to maturity of the existing Tranche B Term Loans and (y) Incremental Term A Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding existing Tranche A Term Loans”);
(v) the Applicable Rate maturity date of (x) all Incremental Term B Loans shall not be earlier than the latest Maturity Date with respect to any Additional the Tranche B Term Loans as then in effect and (y) all Incremental Term A Loans shall not be earlier than the latest Maturity Date with respect to the Tranche A Term Loans as then in effect; and
(vi) the interest rate margins for (x) the new Incremental Term A Loans shall be determined by the Borrower and the lenders of applicable new Lenders and (y) the Additional new Incremental Term B Loans shall be determined by Borrower and the applicable new Lenders; provided, however, that the interest rate margins for the new Incremental Term B Loans; provided , shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Additional Tranche B Term Loans incurred prior plus 50 basis points (and the interest rate margins applicable to the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Tranche B 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 increased to the extent necessary so that to achieve the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans foregoing); provided, further, that, that in determining the Applicable Rate with respect interest rate margins applicable to Additional the existing Tranche B Term Loans or Loans, and the applicable Class of Outstanding Incremental Term Loans pursuant to this clause (v)B Loans, as applicable, (Ax) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of collectively, “OID”) payable by the Borrower to the lenders providing such Additional Lenders of the existing Tranche B Term Loans or such Outstanding the Incremental Term B Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and ), (By) customary arrangement or commitment fees payable to any lead arranger arrangers (or its their respective affiliates) shall be excluded and (z) if the Incremental Term B Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase in connection with the Additional Term Loans or Outstanding interest rate margins for the Tranche B Term Loans shall be excludedrequired, to the extent an increase in the interest rate floor in the Tranche B Term Loans would cause an increase in the interest rate margins, and in such case the interest rate floor (ybut not the Applicable Margin) 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 Tranche B Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term by such increased amount. The increased or new Commitments shall be determined effected by a joinder agreement (the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 DateIncrease Joinder”) on which the Borrower proposes that the Additional Commitments shall be effectiveexecuted by Borrower, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each Lender making such increased or new Commitment, in form and substance satisfactory to 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 them. The Increase Joinder may, without 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 consent of any Additional Commitmentsother Lenders, 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 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 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 BorrowerAgent, to effect the provisions of this Section 2.162.24.
(d) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment under the applicable Revolving Facility prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment under the applicable Revolving Facility on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans under the applicable Revolving Facility (which purchases shall be deemed prepayments of such Revolving Loans for purposes of Section 2.20) and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans under the applicable Revolving Facility and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments under the applicable Revolving Facility after giving effect to such Increased Revolving Commitments under the applicable Revolving Facility.
(e) This Section 2.16 shall supersede On any provisions in Section 2.13 or Section 11.01 Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the contrarysatisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(f) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 10 hereof and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Term Loans or any such new Commitments.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may Borrowers may, any time or from time to time after the later of (i) the Closing Date and (ii) the earlier of (A) sixty (60) days after the Closing Date and (B) the date upon which a Successful Syndication is achieved, by written notice to the Administrative Agent elect to seek (x) commitments (an “Additional Revolving Credit CommitmentsIncremental Facility Request”) to increase request the Revolving Credit Commitments and/or establishment of incremental or additional term loan facilities (y) each, an “Incremental Term Facility”, the commitments (thereunder, the “Additional Incremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”) ). Any such Incremental Term Facility may be implemented by increasing the amount of loans and commitments under the existing Facility or by adding a new facility to increase this Agreement. Subject to the terms and conditions set forth in this Section 2.21, the Incremental Term Facilities shall be funded on the relevant Increased Amount Date; provided that no Incremental Term Facility shall be incurred on such date to the extent that the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 such Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) Facility when combined with the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of all Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 clause (C), available under such Additional Commitments had been Facilities then 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of exceeds $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 limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Loans150,000,000.
(b) Each such notice Incremental Facility Request shall specify (x) the date (each, an “Additional Commitments Effective Increased Amount Date”) on which the Borrower proposes Borrowers propose that the Additional Incremental Term Commitments and the date the Incremental Term Loans shall be effectivemade available, which shall be a date reasonably acceptable not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrowers shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the Persons (each of Incremental Term Commitments have been allocated, which allocation shall be made at the Borrowers’ sole discretion. Any Lender approached to provide all or 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 Incremental Term Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Commitment (it being understood that the Borrowers have no obligation to be provided by each approach any Lender, and no Lender is committing to provide any Incremental Term Commitment until such Person. time as such Lender agrees in writing to provide all or a portion of the Incremental Term Commitment).
(c) 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), Increased Amount Date:
(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 shall exist and be continuing or would immediately result from the incurrence of such Incremental Term Facility;
(ii) the incurrence of any such Incremental Term Facility shall be in compliance 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 all obligations under Regulation U;
(and pay any additional amounts required pursuant to Section 3.05iii) to the extent necessary that such Incremental Term Loans are not made as part of the Term Facility (in which case all terms thereof shall be identical to keep the terms of the Term Facility):
(A) the final maturity date under any Incremental Term Facility shall not be earlier than the Term Maturity Date;
(B) the amortization requirements for any Incremental Term Facility shall be determined by the Borrowers and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than the Weighted Average Life to Maturity of the Initial Term Loans outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in under 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 Term Facility (without giving effect to such Additional Revolving Credit any prepayments (other than amortization));
(C) the Incremental Term Facility shall not be (x) guaranteed by any Person who is not, or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the Loan Documents;
(iv) if the All-In Yield applicable to any Incremental Term Loans under any Incremental Term Facility shall be 0.50% per annum or more higher than the corresponding All-In Yield on the Term Facility as of the date of incurrence, then the All-In Yield applicable to the Term Facility shall be increased to cause the then applicable All-In Yield for the Term Facility to equal the All-In Yield then applicable to the Incremental Term Loans minus 0.50% per annum (this provision, the “MFN Protection”); and
(v) the terms and provisions of the Incremental Term Commitments shall make be as agreed between the Borrowers and the applicable Incremental Lenders providing such Revolving Credit Incremental Term Commitments, subject to satisfying the requirements of this Section 2.21(c) and the terms of such Incremental Term Commitments shall be effected pursuant to an amendment to this Agreement (an “Incremental Amendment”) executed and delivered by the Borrowers, the Administrative Agent and one or more Incremental Lenders; provided that (x) such Incremental Term Loans may participate in accordance any mandatory prepayment under Section 2.10 hereof on a pro rata basis (or on a basis less than pro rata), but not on a basis that is more favorable than pro rata and (y) with respect to terms not addressed by this Section 2.01(b2.21(c), if such terms (other than pricing terms) of the Incremental Term Commitments are not, taken as a whole, substantially consistent with the terms of the Term Facility, such terms shall not be more restrictive, when taken as a whole, than the terms of the Term Facility (except for terms applying after the Term Maturity Date or Extended Maturity Date, as applicable).
(cd) Any other terms of and documentation entered into in respect of On any Additional Increased Amount Date on which any Incremental Term Commitments shall be on Commitment becomes effective or Incremental Term Loans are funded, subject to the foregoing terms and pursuant conditions, each Incremental Lender to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including extent not already a Lender, shall become a Lender hereunder with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) such Incremental Term Commitment or (ix) aboveIncremental Term Loan; provided that to the extent such other terms and documentation in respect of any Additional Term Loans are Person that becomes an Incremental Lender that is 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 already a Lender hereunder shall be reasonably satisfactory to the Administrative AgentAgent and the Borrowers to the extent consent would be required under Section 9.04(b) for an assignment of Loans to such Incremental Lender.
(de) The Additional Commitments For purposes of this Agreement, any Incremental Term Loans shall be documented by an Additional Credit Extension deemed to be Loans. Each Incremental Amendment executed by may, without the Persons providing the Additional Commitments (and the other Persons specified in the definition consent of Additional Credit Extension Amendment but no other existing any Lender), and the Additional Credit Extension Amendment may provide for effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section 2.162.21.
(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: Credit Agreement (Global Infrastructure Investors III, LLC)
Increase in Commitments. (a) The Borrower may Company may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek each of the Lenders of the applicable Class), request that the Tranche A Commitments or the Tranche B Commitments be increased; provided that the total Commitments shall not be increased by more than US$500,000,000 during the term of this Agreement pursuant to this Section. Such notice shall set forth the amount of the requested increase in the total Commitments, the Class to be so increased and the date on which such increase is requested to become effective (x) commitments which shall be not less than 10 Business Days or more than 60 days after the date of such notice), and shall offer each Lender of such Class the opportunity to increase its Commitment of such Class by its Applicable Percentage of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 days after the date of the Company’s notice, either agree to increase its Commitment of the applicable Class by all or a portion of the offered amount (each Lender so agreeing being an “Additional Revolving Credit CommitmentsIncreasing Lender”) or decline to increase its Commitment of the Revolving Credit Commitments and/or applicable Class (y) commitments (“Additional Term Commitments”) and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment of such Class). In the event that, on the 10th day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders of the applicable Class shall have agreed pursuant to the preceding sentence to increase their Commitments of such Class by an aggregate principal amount less than the increase in the total Commitments of any existing such Class of Term Loans or to establish requested by the Company, the Company may arrange for one or more new Classes of Term Loans; provided that:
banks or other financial institutions (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the any such bank or other financial institution being called an “Incremental Dollar BasketAugmenting Lender”), 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitmentswhich may include any Lender, to the extent such Additional Term Loans and Additional Revolving Credit extend Commitments 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 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 Class or increase their existing Commitments 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereofequal to the unsubscribed amount; provided that such amount may be less than $10,000,000 each Augmenting Lender, if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 already 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 either Class hereunder, shall be provided by each such Person. As a condition precedent subject to the effectiveness approval 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 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 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.
, each Issuing Bank and each Swingline Lender (d) The Additional Commitments shall such approvals not to 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 Lenderunreasonably withheld), and the Additional Credit Extension Amendment may provide for Company and each [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] Augmenting Lender shall execute all such amendments to this Agreement and the other Loan Documents documentation as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and shall reasonably specify to evidence its Commitment of such Class and/or its status as a Lender of such Class hereunder. Any increase in the Borrowertotal Commitments of either Class may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, or chooses not to effect the provisions of this Section 2.16arrange for, Augmenting Lenders.
(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: Credit Agreement (Yum Brands Inc)
Increase in Commitments. (a) The Borrower may by written notice request (in writing) Incremental Commitments in an aggregate amount not to exceed, in the aggregate, the greater of (i) $500,000,000 (minus the aggregate principal amount of all Indebtedness issued pursuant to Section 8.2(n) after the 2011 Restatement Date but on or prior to the Administrative Agent elect date of such request, but not to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase be reduced by the aggregate principal amount of any existing Class such Incremental Term Loans, or Indebtedness issued pursuant to Section 8.2(n), the proceeds of which are applied to the refinancing of all or any portion of the Tranche B Term Loans) and (ii) an amount such that the Consolidated Senior Secured Leverage Ratio for the Borrower’s most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been no greater than 3.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional secured Indebtedness had been incurred at the beginning of such four-Fiscal Quarter period, in increments of (x) no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time with respect to Incremental Term Loans and (y) no less than $5,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to establish this Section 2.4 is less than $5,000,000) at any one time with respect to Incremental Revolving Loans, from one or more new Classes Incremental Lenders (approved by the Administrative Agent if such Incremental Lender is not already a Revolving Lender and is to be a Revolving Lender after the effective date of the applicable Incremental Commitment Agreement, which approval shall not be unreasonably withheld, conditioned or delayed) willing to provide such Incremental Commitments. Requests for such Incremental Commitments may be, at the Borrower’s option, for Incremental Revolving Loans (at any time prior to the later of the (i) Revolving Termination Date and (ii) the latest Extended Revolving Termination Date, if any) and/or Incremental Term Loans; provided that:
. In the event the Borrower shall request Incremental Term Loans, such request shall set forth (i) the aggregate amount of all Additional Commitments the Incremental Term Loans being requested, (ii) the date on which such Incremental Term Loans are requested to be made, (iii) any requested differences between the Incremental Term Loans and the existing Tranche B-3 Term Loans (which shall not exceed be effective until set forth in an executed Incremental Commitment Agreement executed by the sum of Group Members and each applicable Incremental Lender), provided, that in any event (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional all Incremental Term Loans shall be determined by no shorter than the Borrower and the lenders Weighted Average Life to Maturity of the Additional Term Loans; provided that with respect to any Additional Tranche B-3 Term Loans incurred prior to at the date that is 18 months after time of the Amendment No. 1 Effective Dateborrowing of such Incremental Term Loan, and (xB) in the event that the Applicable Rate for Maturity Date of any such Additional Incremental 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 increased to no shorter than the extent necessary so that final maturity of the Applicable Rate for the Additional Tranche B-3 Term Loans, and (iv) whether such Incremental Term Loans is not more than 50 basis points higher than are to have the Applicable Rate for same yield (taking into account the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect interest rate margin and after giving effect to Additional Term Loans all upfront fees or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) similar fees on original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower as to the lenders providing such Additional Tranche B-1 Term Loans or whether such Outstanding Incremental Term Loans in are to have a different yield than the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Tranche B-1 Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv”), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 if 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 yield in respect of any Additional Other Term Commitments shall be on terms and pursuant to documentation agreed between Loan exceeds the Borrower and yield for the Lenders providing such Additional Term 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 Tranche B-1 Term Loans are not consistent with those of by more than 0.25%, the Applicable Margin for the Tranche B-1 Term B Loans (except to and, if applicable, 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.Tranche
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy of each to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase Lenders), request that the aggregate principal Commitment be increased by an amount of not less than $10,000,000 for any existing Class of Term Loans or to establish one or more new Classes of Term Loanssuch increase; provided that:provided
(i) that such request for increase may be given only once during the aggregate amount of all Additional Commitments shall not exceed the sum of term hereof and (Aii) after the Amendment No. 1 Effective Date, and that after giving effect to any such increase the incurrence sum of the 2016 Incremental Term B Loans Commitment and the 2016 Incremental Revolving commitments under the 364-Day Credit Agreement shall not exceed $200,000,000 minus any amount by which the Commitment Increaseand the commitments under the 364-Day Agreement shall have been reduced pursuant to SECTION 2.3 and SECTION 2.2 of the 364-Day Agreement. Such notice shall set forth the amount of the requested increase in the Commitment and the date on which such increase is requested to become effective (which shall be not less than 45 days or more than 60 days after the date of such notice), and at Borrower's option, may offer to one or more existing Lenders and/or other banks or financial institutions (any such Lender or other bank or other financial institution referred to in this clause (a) being called an "AUGMENTING LENDER") the opportunity to extend credit hereunder or increase their existing Committed Sums in an aggregate amount equal to the proposed increase; provided that no Lender shall be obligated to agree to increase its Committed Sum; and, provided further, that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment Percentage and status as a Lender hereunder. Any increase in the Commitment may be made in an amount which is less than the increase requested by Borrower if Borrower is unable to arrange for Augmenting Lenders with sufficient Committed Sums.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the Commitment pursuant to this SECTION 2.4 (the "COMMITMENT INCREASE"), (x) $75,000,000 less (yi) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(ithe Borrowings outstanding (the "INITIAL LOANS") less immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (zii) each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's Commitment Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender whose Committed Sum is not being increased (a "NON-INCREASING LENDER") the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender's Commitment Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Initial Loans and voluntary commitment reductions of Revolving Credit Commitments the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with SECTION 2.5, (vi) each Non-Increasing Lender and each Augmenting Lender shall be deemed to hold its Commitment Percentage of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the Borrower shall pay each Augmenting Lender that shall have been a Lender prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans Commitment Increase and voluntary commitment reductions of Additional Revolving Credit Commitments, to each Non-Increasing Lender any and all accrued but unpaid interest on the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained Initial Loans. The deemed payments made pursuant to clause (Ci) below), plus (C) additional amounts so long as above in respect of each Eurodollar Loan shall be subject to indemnification by Borrower pursuant to the Consolidated First Lien Net Leverage Ratio and provisions of SECTION 4.5 if the Consolidated Net Leverage Ratio, determined Increase Effective Date occurs other than 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 Interest Period relating thereto and in either case incurred breakage costs result.
(c) Increases and new Commitments created pursuant to this clause (C), available under such Additional Commitments had been outstanding SECTION 2.4 shall become effective on the last day of such period, and, date specified in each case (x) with respect to any Additional Revolving Credit Commitment incurred the notice delivered by Borrower pursuant to this clause the first sentence of paragraph (C), assuming a borrowing of the maximum amount of Loans available thereunder, and (ya) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Loansabove.
(bd) Each such notice shall specify Notwithstanding the foregoing, no increase in the total Commitments (x) or in 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 Lender) or addition of a new Lender 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)become effective under this Section unless, (i) on the representations date of such increase, the conditions set forth in SECTIONS 7.1 and warranties contained in Article V 7.2 shall be satisfied 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 Administrative Agent shall have been true received a certificate to that effect dated such date and correct in all material respects as of such earlier dateexecuted by a Responsible Officer, 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 the Administrative Agent shall have received (with 17 NBPLP CREDIT AGREEMENT sufficient copies for each of Default exists. On each Additional Commitments the Lenders) documents consistent with those delivered on the Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan under SECTIONS 7.1 and 7.2 as to the partnership power and authority of 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 borrow hereunder after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b)increase.
(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 2.16(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 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (A) after in the Amendment No. 1 Effective Date, and after giving effect to the incurrence case of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause Clause (A), on and after the Tenth Amendment Effective Date, the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Dollar BasketAvailability”), 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, additional amounts to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to that in the case of this clause (CB) below), plus (C) additional amounts so long as only the Consolidated First Lien Senior Secured 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 Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall not exceed, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the Borrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the Borrower may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit CommitmentsLoans, as applicable and in either case applicable) originally designated to be incurred pursuant under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the Borrower would be permitted to incur under this clause (CSection 2.14 the aggregate principal amount of such Indebtedness being so re-designated), 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) (A) the final maturity date of any Additional Term Loans shall be no earlier than the Latest latest Maturity Date;
Date for any then outstanding Term Loans and (ivB) the final maturity date of any Additional Term Revolving Credit Loans shall have a Weighted Average Life to Maturity equal to or greater be no earlier than the latest Maturity Date for any then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (Revolving Credit Commitments; provided that the “Outstanding Term Loans”);
(v) the Applicable Rate amortization schedule with respect to any Additional Term Loans shall be determined by the Borrower and the lenders Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans; provided that Loans shall be no shorter than the remaining weighted average life to maturity of the then-existing tranche of Term Loans with the AMERICAS/2023095923.12023095923.18 116 Credit Agreement latest Maturity Date, (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Loans Commitments incurred prior to the date that is 18 less than six months after the Tenth Amendment No. 1 Effective DateDate that utilize the Ratio Incremental Availability, the all-in yield (x) whether in the event that form of interest rate margins, original issue discount, upfront fees or a Eurodollar Rate floor greater than 0.75%, with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Rate for applicable interest margin under the Term Loan Facility) applicable to 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall will be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 providing 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, but will not be more than 0.50% higher than 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 corresponding all-in yield (after giving effect to interest rate margins (including the Additional Commitments (and assuming full utilization thereofEurodollar Rate floor), (ioriginal issue discount and upfront fees) for each then-existing tranche under the representations and warranties contained in Article V and Term Loan Facility unless 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 interest rate margins with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional such existing Term Loan to the Borrower in a principal Facility are increased by an amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date difference between the all-in yield 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 2.16(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 corresponding all-in yield on 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 Term 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 2.16Facility minus 0.50%.
(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: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Effective Date and prior to seek the Latest Maturity Date, on one or more occasions (x) commitments (“Additional but not more than three), request to incur one or more Incremental Term Loan Commitments and/or increase the aggregate amount of the Revolving Facility by obtaining one or more Incremental Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the , in an aggregate principal amount of any existing Class of Term Loans or not to establish exceed $100,000,000, from one or more new Classes Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Loans; provided that:
Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and solely with respect to any Incremental Revolving Credit Lender, each LC Issuer and the Swing Line Lender, in each case in their respective reasonable discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Such notice shall set forth (i) the aggregate amount of all Additional the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than five Business Days nor more than 60 days after the Amendment No. 1 Effective Datedate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”); provided that (a) no commitment of any Lender may be increased without consent of such Lender, and (b) except as otherwise agreed by the Lenders (in their sole discretion) providing the Incremental Facility in connection with an acquisition or other Investment permitted under this Agreement, no Default or Event of Default exists immediately before or after giving effect thereto. Notwithstanding anything contained herein to the incurrence contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans; provided that the Borrower may increase the pricing of the 2016 Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional upfront fees.
(b) The Borrower and each Incremental Term B Loans Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Maturity Date;
, (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders average life to maturity of the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to , (iii) until the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any Other Term Loans, if the Initial Yield on such Additional Other Term Loans is greater than the Applicable Rate for the Term B Loans exceeds by more than 50 basis pointspoints the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate Margin then in effect for the each such affected Type of Term B Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the extent necessary so that sum of (x) the Applicable margin above the Adjusted Eurodollar Rate for the Additional on such Other Term Loans is not more than 50 basis points higher than the 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable increased by the Borrower amount any “LIBOR floor” applicable to the lenders providing such Additional Other Term Loans or on the date such Outstanding Other Term Loans in are made exceeds the primary syndication thereof Adjusted Eurodollar Rate) plus (with OID being equated to interest based on y) if the Lenders making such Other Term Loans receive an assumed four-year upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront fee divided by the lesser of (A) the average life to maturity) shall be included maturity of such Other Term Loans and (B) customary arrangement or commitment fees payable to any lead arranger four, (or its affiliatesiv) in connection with the Additional Term Loans or Outstanding Incremental Term Loans shall be excludeddenominated in Dollars, 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viiiv) the Additional Other Term Loans shall rank pari passu or junior in right of payment and of security with the existing Loans; and
(ix) other Credit Facilities or may be unsecured. The other terms of the Additional Incremental Term Loans may have optional prepayment and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms (including call protection and prepayment premiums) and mandatory prepayment terms as may applicable to the Term Loans hereunder shall otherwise be agreed between reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of its Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and the lenders of the Additional Term Loans provisions so long as such Additional Other Term Loans do remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. For the avoidance of doubt, any Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not participate on a greater than pro rata basis basis) as the Term Loans in any such voluntary or mandatory prepayments hereunder, as compared specified in the applicable amendment documenting such Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term B Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 10.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. For the avoidance of doubt, none of the Borrower or its Subsidiaries or their respective Affiliates may provide any Incremental Revolving Credit Commitment or Incremental Term Loan.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 7.07.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(be) Each such notice shall specify (x) On the effective date (eachof any Incremental Revolving Credit Commitments, 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 may take any and (y) the identity of the Persons (each of which shall all action as may 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 reasonably necessary to be provided by each such Person. As a condition precedent to ensure that, upon the effectiveness of any Additional such Incremental Revolving Credit Commitments, (i) Revolving Loans made under such Incremental Revolving Credit Commitments are included in each Borrowing of outstanding Revolving Loans on a pro rata basis and (ii) the Borrower shall deliver to Lender providing such Incremental Revolving Credit Commitments shares ratably in the Administrative Agent a certificate dated as Aggregate Revolving Facility Exposure. Each of the Additional Commitments Effective Date signed by Revolving Lenders shall participate in any new Revolving Loans made on or after such date on a Responsible Officer of the Borrower certifying that, before and pro rata basis based upon such Lender’s Revolving Facility Percentage after giving effect to the Additional increase in Revolving Commitments (and assuming full utilization thereof)contemplated by Section 2.17. On the effective date of any Incremental Revolving Credit Commitments, each Lender providing any such additional Revolving Commitments (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 will be deemed to refer to have purchased a participation in each then outstanding Letter of Credit on a pro rata basis based upon such Lender’s Revolving Facility Percentage of such Letters of Credit and the most recent financial statements furnished pursuant to subsection (a) participation of Section 6.01 each other Revolving Lender in such Revolving Facility Letters of Credit shall be adjusted accordingly and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitmentwill acquire, 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 will 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 2.16(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 , for the Persons providing the Additional Commitments (and the other Persons specified in the definition account of Additional Credit Extension Amendment but no other existing each 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 immediately available funds, an amount equal to) its pro rata share based upon such Lender’s Revolving Facility Percentage of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16outstanding Revolving Facility LC Participation.
(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: Credit Agreement (TopBuild Corp)
Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $50,000,000; provided that, without the prior written consent of all of the Lenders, (a) The Borrower may by written notice to the Administrative Agent elect to seek sum of (x1) commitments the Aggregate Commitment and (“Additional Revolving Credit Commitments”2) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) Five-Year Aggregate Commitment shall at no time exceed $400,000,000 minus the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, reductions in (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained Aggregate Commitment previously made pursuant to clause (CSection 2.5(A) 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 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 in the cash proceeds of any Loans Five-Year Aggregate Commitment previously made in accordance with and pursuant to such Additional Commitments, do the relevant provisions of the Five-Year Credit Agreement; (b) the Company shall not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) make any such increase or request during the six month period following any new Class reduction in the Aggregate Commitment previously made pursuant to Section 2.5(A); (c) the Company shall not be entitled to make more than one such request during any calendar year; and (d) each such request shall be in an aggregate a minimum amount of at least $10,000,000 or any whole multiple 25,000,000 and increments of $500,000 1,000,000 in excess thereof; provided that such amount may . Such request shall be made in a written notice given to the Administrative Agent and the Lenders by the Company not less than $10,000,000 if twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a "Commitment Increase Notice") shall specify the amount represents all remaining availability under of the limit set forth proposed increase in the preceding clause (i);
(iii) Aggregate Commitment and the final maturity proposed effective date of any Additional Term Loans such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be no earlier than given the Latest Maturity Date;
(iv) opportunity to participate in the Additional Term Loans requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have any obligation to increase its Commitment pursuant to a Weighted Average Life to Maturity equal to Commitment Increase Notice. On 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 fifteen (15) Business Days after receipt of the Amendment No. 1 Effective DateCommitment Increase Notice, (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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing each Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 submit to the Administrative Agent a certificate dated as of notice indicating the Additional Commitments Effective Date signed maximum amount by a Responsible Officer of the Borrower certifying that, before and after giving effect which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Additional Commitments (and assuming full utilization thereofAdministrative Agent being herein a "Lender Increase Notice"), (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 . Any Lender which does not submit a Lender Increase Notice to the extent that such representations and warranties specifically refer Administrative Agent prior to an earlier date, in which case they shall have been true and correct in all material respects as the expiration of such earlier date, and except that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(afifteen (15) Business Day period 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 have denied any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower increase in a principal amount equal to such Person’s Additional Term its Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on In the Additional event that the increases of 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 set forth in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, Lender Increase Notices exceed 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 2.16(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 amount requested by the Persons providing the Additional Commitments (and the other Persons specified Company in the definition of Additional Credit Extension Amendment but no other existing Lender)Commitment Increase Notice, 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 each Arranger shall have the Borrowerright, in consultation with the Company, 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.allocate the
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments and/or (y) commitments (each, a “Additional Term CommitmentsCommitment Increase”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or Commitment Increase and Joinder Agreement; provided, that after giving effect to establish one or more new Classes of Term Loans; provided that:
(i) any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (A) after the Amendment NoIncremental Cap. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred Each such addition under this Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A2.16(a), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class . shall be in an aggregate amount of $10,000,000 5,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof; provided that .
(b) Any loans made in respect of any such amount additional Term Commitments (the “Additional Term Loans”) may be less than $10,000,000 if such amount represents all remaining availability under made, at the limit set forth in option of the preceding clause Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”);
(iii) the final maturity date of ; provided, that any Additional Term Loan Tranche other than Customary Bridge Loans or the Inside Maturity Amount, (A) shall be no earlier than not mature prior to the Latest stated Maturity Date;
(iv) Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than and (B) 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 Loan Tranche 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 Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater no less than the Applicable Rate for the Weighted Average Life to Maturity of such latest maturing Tranche of Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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.
(bc) Each Any such notice additional Revolving Credit Commitments (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 specify be unsecured.
(xd) 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 in form and substance reasonably satisfactory to the date 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 Commitments Effective Date”) on which and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower proposes that and the lenders providing such Commitment Increase of the final allocation thereof and 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 PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatsuch addition, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (ii)(A) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the 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 (B) no Event of Default exists before or after giving effect to such addition; provided, that for purposes 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(b), the representations 2.16(e) may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions 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 “specified representations” provisions and (ii) no Default 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 Event Section 6.01(b) or in any subsequent delivery of Default exists. 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 with respect to any Additional Term CommitmentDate, (i) each Person with Lender or Eligible Assignee which is providing an Additional 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 Person’s additional Term Commitment, and such Additional Term Commitment. The Borrower Loan shall prepay any 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 additional Revolving Credit Loans outstanding on Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the Additional Commitments Effective Date other Loan Documents with respect 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 Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Term 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 will be on terms and pursuant to documentation agreed between determined by the Borrower and the Lenders lenders providing such Additional Term Commitments Loans.
(h) Any Additional Term Loans may rank pari passu or junior with respect to security with the 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 voluntary and mandatory prepaymentsmargin, pricing, maturity and/or fees), 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 Loan Tranche, if not substantially consistent with those the terms of the applicable Term B Loans (except to the extent permitted by Section 2.16(a)(iii)Facility, (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
Agent (dit being understood that (i) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by terms not substantially consistent with the Persons providing applicable Term Facility which are applicable only after 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 Latest Term Maturity Date are satisfactory to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and (ii) terms that are more favorable to the Borrowerlenders 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 Lenders or the Administrative Agent, as applicable, shall be deemed satisfactory to effect the provisions of this Section 2.16Administrative Agent).
(ej) This Section 2.16 shall supersede The proceeds of any provisions in Section 2.13 or Section 11.01 to Commitment Increase may be used by the contraryBorrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek (x) commitments (“Additional Revolving Credit Commitments”) to each of the Banks), request that the total Commitments be increased by an amount not less than $25,000,000 for any such increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) and not greater than $250,000,000 minus the aggregate amount of prior or simultaneous increases of the Commitments under this Agreement and the 364-Day Agreement. Such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 45 days or more than 60 days after the date of such notice), and shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice to the Borrower and the Administrative Agent given not more than 20 days after the date of the Borrower's notice, either agree to increase its Commitment by all Additional or a portion of the offered amount (each Bank so agreeing being an "INCREASING BANK") or decline to increase its Commitment (and any Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this paragraph (a) being called an "AUGMENTING BANK"), which may include any Bank, to extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Bank, if not already a Bank -------- hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not exceed be unreasonably withheld) and each Augmenting Bank shall execute all such documentation as the sum Administrative Agent shall specify to evidence its Commitment and its status as a Bank hereunder. Increases and new Commitments created pursuant to this paragraph (a) shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (Aor in the Commitment of any Bank) after shall become effective under this paragraph unless, (i) on the Amendment No. 1 Effective Datedate of such increase, the conditions set forth in paragraphs (b) and (c) of Section 3.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Banks) documents consistent with those delivered under clauses (b) and (c) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(b) On the incurrence effective date (the "INCREASE EFFECTIVE DATE") of any increase in the 2016 Incremental Term B Loans and total Commitments pursuant to paragraph (a) above (the 2016 Incremental Revolving Credit Commitment Increase"COMMITMENT INCREASE"), (x) $75,000,000 less (yi) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(ithe Loans outstanding (the "INITIAL LOANS") less immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (zii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that shall not have been a Bank prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non- Increasing Bank the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount Initial Loans in this clause (A)the currency or currencies, and of the “Incremental Dollar Basket”), plus (B) all voluntary prepayments types and for the Interest Periods specified in a Notice 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, Borrowing delivered to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Administrative Agent in either case incurred pursuant to this clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case (x) accordance 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective DateSection 2.02, (xvi) 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 pointseach Non-Increasing Bank, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which each Increasing Bank and each Augmenting Bank shall be deemed to constitute like amounts hold its Applicable Percentage of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof each Subsequent Borrowing (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 calculated after giving effect to the Additional Commitments Commitment Increase) and (and assuming full utilization thereof), (ivii) 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 pay each Increasing Bank and each Non-Increasing Bank any Revolving Credit Loans outstanding and all accrued but unpaid interest 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)Initial Loans.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Closing Date and prior to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Term Loan Maturity Date, request on one or more occasions, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the in an aggregate principal amount of any existing Class of Term Loans or not to establish one or more new Classes of Term Loans; exceed $50,000,000 (provided that:
(i) that the aggregate amount of all Additional Incremental Revolving Credit Commitments shall not exceed $10,000,000) from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the sum approval of the Administrative Agent in its reasonable discretion. Such notice shall set forth (Ai) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the Amendment Nodate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). 1 Effective Date, and after giving effect Notwithstanding anything contained herein to the incurrence of contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the 2016 terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrower may seek Incremental Term B Loans Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, available under such Additional Commitments had been outstanding on that, without 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 prior written consent of the maximum amount of Loans available thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
Date and (ivii) the Additional Term Loans shall have a Weighted Average Life weighted average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders weighted average life to maturity 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 Amendment No. 1 Effective 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 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Other Term Loans or exceeds by more than 50 basis points the applicable Class sum of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “OIDYield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) or the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (which shall be deemed to constitute like amounts including original issue discount where the amount 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 discount is equated to interest based on an assumed four-four year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) shall be included directly or indirectly from Holdings, the Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) customary arrangement or commitment fees payable four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to any lead arranger (or its affiliates) in connection the extent not consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” terms applicable to the Outstanding Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term B Loans remain outstanding and such additional rights and provisions shall be increased so that deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the applicable part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “floor” is Incremental Amendment”) and furnished to the same;other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(vic) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional All Incremental Term Loans shall rank pari passu in right of payment and security with the existing Loans; and
(ix) the Additional initial 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 guaranteed by 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 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 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 AgentGuarantors.
(d) The Additional Commitments Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (satisfied 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 shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, to effect (ii) the provisions of this Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 2.167.07.
(e) This Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 2.16 3.02 shall supersede apply to any provisions conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13 or Section 11.01 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the contraryterms and conditions applicable to the Revolving Facility.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek request an increase in Revolving Commitments (x) commitments (the “Additional Incremental Revolving Credit Commitments”) to increase the ), which Incremental Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed be on terms identical to those applicable to the sum of (A) after other Revolving Commitments in place on the Amendment No. 1 applicable Incremental Revolving Commitment Effective Date, and after giving effect to the incurrence by an amount, taken together with any Term Loan Increase under Section 2.4(b), not in excess of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) 100,000,000 in the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth 15,000,000 in the preceding clause (i);
(iii) the final maturity date respect of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
individual increase (iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 lesser amount as may be agreed between approved by the Borrower Administrative Agent) and the lenders integral multiples of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis $5,000,000 in any such mandatory prepayments as compared to Term B Loans.
(b) excess of that amount. Each such notice shall specify (xi) the date (each, an “Additional Commitments Incremental Revolving Commitment Effective Date”) on which the Borrower proposes that the Additional Incremental Revolving Commitments shall be effective, which shall be a date reasonably acceptable not less than ten Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yii) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Lender”) to whom the Persons Borrower proposes any portion of such Incremental Revolving Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment. Such Incremental Revolving Commitments shall become effective as of such Incremental Revolving Commitment Effective Date; provided that: (i) no Default shall exist on such Incremental Revolving Commitment Effective Date before or after giving effect to such Incremental Revolving Commitments; (ii) the Administrative Agent shall have received such documents, incumbency and other certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Incremental Revolving Commitments and any other legal matters relating to the Loan Parties, this Agreement or the Incremental Revolving Commitments (it being understood and agreed that the Administrative Agent and the Lenders shall be entitled to conclusively rely on such documents, incumbency and certificates until notice is received by the Administrative Agent from the Borrower to the contrary); (iii) the representations and warranties of the Loan Parties contained herein and in the other Loan Documents shall be true and correct in all material respects (or in all respects if the applicable representation and warranty is qualified by Material Adverse Effect or other materiality qualifier) on and as of the Incremental Revolving Commitment Effective Date (except to the extent such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects (or in all respects if the applicable representation and warranty is qualified by Material Adverse Effect or other materiality qualifier) as of such earlier date); (iv) the Borrower shall be in pro forma compliance with each of the financial covenants set forth in Section 6.1 on a pro forma basis as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Revolving Commitments, calculated assuming each Incremental Revolving Commitments are fully drawn but without the netting of any cash proceeds of any Incremental Revolving Loans being made on such date; (v) the Incremental Revolving Commitments shall be effected pursuant to one or more joinder agreements (each, an “Incremental Revolving Joinder”) in form and substance satisfactory to the Administrative Agent executed and delivered by the Borrower, each Incremental Revolving Lender and the Administrative Agent, and each of which shall be a Person that would recorded in the Register and each Incremental Revolving Lender shall be an Eligible Assignee subject to the requirements set forth in Section 2.17(g); and (for this purpose treating a Lender of Additional Commitments as if it were an assignee)vi) whom the Borrower proposes would provide shall deliver or cause to be delivered a certificate as to the Additional Commitments foregoing and any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. On each Incremental Revolving Commitment Effective Date, subject to the terms and conditions set forth in this Section, each Incremental Revolving Commitment shall be a Revolving Commitment and part of the Revolving Facility (and not a separate Facility hereunder), each Incremental Revolving Lender providing such Incremental Revolving Commitment shall be, and have all the rights of, a Revolving Lender, and the portion Revolving Loans made by it on such Incremental Revolving Commitment Effective Date pursuant to this Section shall be Revolving Loans, for all purposes of this Agreement. Except for purposes of this Section 2.4(a), any Incremental Revolving Commitments that are designated as an increase to the Revolving Commitments shall be deemed to be effective as of the Additional applicable Incremental Revolving Commitment to be Effective Date, and after the effectiveness of such Incremental Revolving Commitments, Revolving Commitments for all purposes of this Agreement; provided by each that for the avoidance of doubt such PersonIncremental Revolving Commitments will remain Incremental Revolving Commitments for purposes of this Section 2.4(a). As a condition precedent to For the avoidance of doubt, upon the effectiveness of any Additional CommitmentsIncremental Revolving Commitment, the Borrower shall deliver to the Administrative Agent a certificate dated as Revolving Credit Exposure of the Additional Commitments Effective Date signed by a Responsible Officer Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Borrower certifying Revolving Lenders, shall automatically be adjusted to give effect thereto. On the date of effectiveness of any Incremental Revolving Commitment, each existing Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each existing Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, before after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the Additional effectiveness of such Incremental Revolving Commitment.
(b) The Borrower may by written notice to the Administrative Agent elect to request an increase (a “Term Loan Increase”) in the principal amount of the Term Facility by an amount, taken together with any Incremental Revolving Commitments (and assuming full utilization thereofunder Section 2.4(a), not in excess of $100,000,000 in the aggregate and not less than $15,000,000 in respect of any individual increase (or such lesser amount as may be approved by the Administrative Agent) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Term Loan Increase shall be effective, which shall be a date not less than ten Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Term Lender”) to whom the Borrower proposes any portion of such Term Loan Increase be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Term Loan Increase may elect or decline, in its sole discretion, to provide a portion of such Term Loan Increase. Such Term Loan Increase shall become effective as of such Increased Amount Date; provided that: (i) no Default shall exist on such Increased Amount Date before or after giving effect to such Term Loan Increase; (ii) the Administrative Agent shall have received such documents, incumbency and other certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Term Loan Increase and any other legal matters relating to the Loan Parties, this Agreement or the Term Loan Increase (it being understood and agreed that the Administrative Agent and the Lenders shall be entitled to conclusively rely on such documents, incumbency and certificates until notice is received by the Administrative Agent from the Borrower to the contrary); (iii) the representations and warranties of the Loan Parties contained herein and in Article V and the other Loan Documents are shall be true and correct in all material respects on and as of the Additional Commitments Effective Date, Increased Amount Date (except to the extent that such representations and warranties specifically refer relate solely to an earlier date, in which case they shall have been such representations and warranties were true and correct in all material respects as of such earlier date); (iv) the Borrower shall be in pro forma compliance with each of the financial covenants set forth in Section 6.1 on a pro forma basis as of the last day of the most recently ended fiscal quarter after giving effect to such Term Loan Increase, but without the netting of any cash proceeds of any Incremental Revolving Loans being made on such date; (v) the Term Loan Increase shall be effected pursuant to one or more joinder agreements (each, a “Term Loan Joinder”) in form and substance satisfactory to the Administrative Agent executed and delivered by the Borrower, each Incremental Term Lender and the Administrative Agent, and except that for purposes each of this which shall be recorded in the Register and each Incremental Term Lender shall be subject to the requirements set forth in Section 2.16(b2.17(g); and (vi) the Borrower shall deliver or cause to be delivered a certificate as to the foregoing and any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. On any Increased Amount Date on which any Term Loan Increase becomes effective, subject to the satisfaction of the foregoing terms and conditions (including delivery of a Borrowing Request pursuant to Section 2.3), the representations and warranties contained in Section 5.05(a(i) 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 Incremental Term Commitment, each Person with an Additional Term Commitment Lender shall make an Additional a Term Loan to the Borrower in a principal an amount equal to such Person’s Additional its Term CommitmentLoan Commitment in respect thereof and (ii) each Incremental Term Lender shall become a Lender hereunder. The Borrower Each Term Loan made pursuant to a Term Loan Increase shall prepay any Revolving Credit be a Term Loan having terms identical to those applicable to the Term Loans outstanding in place 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 applicable 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 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to each applicable Term Loan Joinder may, without the extent such other terms and documentation in respect consent 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)other Lender, (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 effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions provision of this Section 2.162.4(b), including to make such appropriate adjustments to Section 2.9(b) as may be necessary in connection with such Term Loan Increase.
(ec) This The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Incremental Revolving Commitment Effective Date or Increased Amount Date.
(d) All Incremental Revolving Commitments and each Term Loan Increase established pursuant to this Section 2.16 2.4, and all Loans made in respect thereof thereunder, shall supersede constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably with the Obligations from the Guarantors and security interests created by the Security Documents. The Loan Parties shall take any provisions in Section 2.13 actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or Section 11.01 otherwise after giving effect to the contraryestablishment of any such Term Loan Increase or Incremental Revolving Commitments.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written Provided there exists no Event of Default, Event of Acceleration or Funding Blockage Event and subject to the approval of FINRA, upon notice to the Administrative Agent elect (which shall promptly notify the applicable Lenders), the Broker/Dealer may from time to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase time request the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes revolving commitments (a “New Credit Line Commitment”) hereunder, in an aggregate amount for all such New Credit Line Commitments from and after the date hereof not in excess of Term Loans$100,000,000; provided that:
that any New Credit Line Commitment shall be in a minimum principal amount of $50,000,000 or a whole increment of $5,000,000 in excess thereof. The Broker/Dealer (in consultation with the Administrative Agent) shall specify in such notice (i) the aggregate principal amount of all Additional Commitments the requested New Credit Line Commitment and (ii) the date (the “Increase Effective Date”) on which the Broker/Dealer proposes that such New Credit Line Commitment shall be effective (which shall in no event be less than fifteen Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent at least five Business Days prior to the Increase Effective Date whether or not it agrees to provide a portion of the requested New Credit Line Commitment (and, if so, the principal amount it proposes to provide). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to provide any portion of the requested New Credit Line Commitment and any election to do so shall be in the sole discretion of such Lender. Any Lender not responding by 5:00 p.m. (New York City time) on the date five Business Days prior to the Increase Effective Date shall be deemed to have declined to provide any portion of the requested New Credit Line Commitment. The Administrative Agent shall notify the Broker/Dealer of the Lenders’ responses to the requested New Credit Line Commitment. To achieve the full amount of a requested New Credit Line Commitment and subject to the consent of the Administrative Agent and FINRA pursuant to Section 32, the Broker/Dealer may also invite additional Eligible Assignees (which for the avoidance of doubt are not already Lenders) to become Lenders. The Administrative Agent and the Broker/Dealer shall determine the final allocation of the requested New Credit Line Commitment; provided that the Broker/Dealer shall not exceed be required to allocate any portion of such New Credit Line Commitment to existing Lenders. The Administrative Agent shall promptly notify the sum applicable Lenders of the final allocation of the requested New Credit Line Commitment.
(Ab) after Each New Credit Line Commitment shall become effective as of the Amendment No. 1 related Increase Effective Date; provided that (i) no Advances are outstanding on such Increase Effective Date, and (ii) no Default shall exist on such Increase Effective Date before or after giving effect to such New Credit Line Commitment and to the incurrence making of any loans (in the 2016 Incremental Term B Loans and case of new loans under the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)Agreement, the “Incremental Dollar BasketNew Advances”), 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C)collectively, the “Incremental Ratio ExceptionNew Advances”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereofpursuant thereto; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date conditions of any Additional Term Loans Section 14 shall be no earlier than met as of such Increase Effective Date and the Latest Maturity Date;
Administrative Agent shall have received a certificate signed by a Responsible Officer of the Broker/Dealer to such effect; (iv) the Additional Term Loans Administrative Agent 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 received such opinions, resolutions, certificates and other documents and instruments related to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
New Credit Line Commitment as it shall reasonably request; (v) the Applicable Rate with respect to any Additional Term Loans maturity date of a New Credit Line Commitment shall not be earlier than the Scheduled Maturity Date; (vi) such New Credit Line Commitment shall be determined effected pursuant to a Joinder Agreement executed by the Borrower Broker/Dealer, the Administrative Agent and the lenders of providing the Additional Term LoansNew Advances (the “New Lenders”); provided that with respect to any Additional Term Loans incurred prior to the date that is 18 months after the Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans New Advances shall rank pari passu in right of payment with all other Advances and no New Advances shall be secured by or receive the benefit of any collateral, credit support or security with that does not secure or support the existing LoansAdvances; and
(viii) each New Credit Line Commitment relating to Advances shall be a Commitment and part of the Credit Line, each New Lender thereunder shall be, and shall have all the rights of, a Lender and the New Advances made by it shall be Advances for all purposes of this Agreement and the terms and provisions of such New Credit Line Commitment and the related New Advances that are Advances shall be identical to those of the existing Commitments and existing Advances; (ix) the Additional Term Loans may have optional prepayment terms (including call protection all fees 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 expenses then due to the Administrative Agent and the Lenders (yother than any Defaulting Lender) 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 paid; and (iix) 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 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 New Credit Line Commitment, to the extent not consistent with those of the Term B Loans (except this Agreement as in effect prior to the extent permitted by Section 2.16(a)(iii)Increase Effective Date, (iv), (v), (vii), (viii) or (ix) above) they shall otherwise be reasonably satisfactory to the Administrative Agent.
(c) On each Increase Effective Date, subject to the foregoing terms and conditions, each New Lender participating in the related New Credit Line Commitment shall become a Lender hereunder.
(d) The Additional Commitments Each Lender hereby agrees that any repayment pursuant to Paragraphs 3(d) or 5(c) of the Agreement after the Increase Effective Date of any Advances borrowed prior to the Increase Effective Date shall constitute new Advances and such Advances shall be documented made by an Additional all Lenders on a pro rata basis, giving effect to any New Credit Extension Amendment executed Line Commitments. Notwithstanding anything herein to the contrary, but subject in all respects to approval 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)FINRA, and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents Revolving Notes may be amended or amended and restated to effect such changes as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.16.
6, which amendment (ewhich may be incorporated in the applicable Joinder Agreement) shall be executed by the Broker/Dealer, the Administrative Agent and the New Lenders (but shall not be required to be executed by any other Lenders and, notwithstanding anything to the contrary set forth in Section 28, shall not require the consent of any Lender other than Lenders providing any New Credit Line Commitments established thereby). Such amendment may provide for the inclusion, as appropriate, of additional Lenders in any required vote or action of the Required Lenders. This Section 2.16 shall supersede any provisions in Section 2.13 4 or Section 11.01 28(a)-(i) and (k) to the contrary.
Appears in 1 contract
Samples: Revolving Note and Cash Subordination Agreement (Willis Group Holdings PLC)
Increase in Commitments. (a) The Borrower may by may, at any time, upon prior written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase Agent, institute the Revolving Credit Commitments and/or (y) commitments (“Additional Incremental Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansLoan; provided that:
(ia) the aggregate Borrower (in consultation with the Syndication Agents) shall obtain commitments for the amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect increase from existing Lenders or other Persons acceptable to the incurrence of Syndication Agents and the 2016 Administrative Agent, which Lenders shall join in this Agreement as Incremental Term B Loans and the 2016 Loan Lenders by executing an Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to Loan Joinder Agreement or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 other agreement reasonably acceptable to the Administrative Agent and the Syndication Agents. Except as expressly set forth in this Section 2.14, the terms of any Incremental Term Loan shall be substantially the same as the Committed Loans made pursuant to Section 2.01(a). No existing Lender shall be under any obligation to incur an Incremental Term Loan Commitment and any such decision shall be in such Lender’s sole and absolute discretion;
(yb) any such institution of the Incremental Term Loan shall be in a minimum aggregate principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof;
(c) no Default or Event of Default shall exist and be continuing at the time of such institution;
(d) the identity Applicable Rate of each Incremental Term Loan shall be as set forth in the Incremental Term Loan Joinder Agreement, provided that the Applicable Rate for the Incremental Term Loan shall not be more than 25 basis points (0.25%) more than the Applicable Rate of any Loan;
(e) the Incremental Term Loan Maturity Date shall be as set forth in the Incremental Term Loan Joinder Agreement, provided that such date shall not be earlier than the Maturity Date;
(f) the scheduled principal amortization payments under the Incremental Term Loan shall be as set forth in the Incremental Term Loan Joinder Agreement; provided that the weighted average life of the Persons Incremental Term Loan shall not be less than the weighted average life to maturity of the Loan in effect as of the Closing Date;
(each of which g) Schedule 2.01 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 deemed revised to reflect the Borrower proposes would provide the Additional Commitments commitments and the portion commitment percentages of the Additional Commitment to be provided by each such Person. As Incremental Term Loan Lenders as set forth in the Incremental Term Loan Joinder Agreement;
(h) as a condition precedent to such institution of the Incremental Term Loan and the effectiveness of any Additional Commitmentsthe Incremental Term Loan Lender Joinder Agreement, the Borrower shall deliver to the Administrative Agent and the Syndication Agents a certificate dated as of the Additional Commitments Effective Date date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of (i) certifying and attaching the resolutions adopted by Borrower approving or consenting to the Incremental Term Loan, (ii) certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)Incremental Term Loan, (ix) 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 Datedate of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b)2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05(a) 5.05 shall be deemed to refer to the most recent financial statements furnished pursuant to subsection clauses (a) and (b), respectively, of Section 6.01 6.01, (y) the Borrower is in compliance with the financial covenant set forth in Section 7.08, and (iiz) 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 and (iii) certifying and attaching 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 calculations used in the Revolving Credit Commitments. If there is a new Borrowing determination 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(bsubsection (ii)(y) and (z).
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower may Company may, at any time after the Closing Date by written notice to the Administrative Agent elect to seek Agent, propose an increase in the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments hereunder (x) commitments (each such proposed increase being a “Additional Revolving Credit CommitmentsCommitment Increase”) either by having a Lender increase its Commitment of the applicable Class then in effect (each an “Increasing Lender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment of the applicable Class hereunder (each an “Assuming Lender”), in each case, with the approval of the Administrative Agent (not to be unreasonably withheld); provided that each Assuming Lender with a NAIC Tranche Commitment shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the Class of the Commitments which is being increased, (iii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iv) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (v) the Company’s election whether to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall be subject to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatfollowing additional conditions:
(i) unless the aggregate Administrative Agent otherwise agrees, the Commitment of any Assuming Lender as part of any Commitment Increase shall be in a minimum amount of all Additional Commitments at least $25,000,000;
(i) unless the Administrative Agent otherwise agrees, each Commitment Increase shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal be in an amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)at least $25,000,000;
(ii) immediately after giving effect to any such increase or any new Class Commitment Increase, the total Commitments hereunder shall be in an aggregate amount of not exceed $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 limit set forth in the preceding clause (i)4,500,000,000;
(iii) no Default has occurred and is continuing on the final maturity date of relevant Commitment Increase Date or shall result from any Additional Term Loans shall be no earlier than the Latest Maturity Date;Commitment Increase; and
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 of the Loan Parties set forth in Article V this Agreement and the other Loan Documents are shall be true and correct in all material respects (or, in the case of such representations and warranties qualified as to materiality, in all respects) on and as of the Additional Commitments Effective Date, except to the extent that such representations relevant Commitment Increase Date as if made on 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 (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). In connection with any Commitment Increase, the Company may, at its option, elect to ratably increase the Foreign Currency Sublimit Dollar Amount in proportion to the amount of such Commitment Increase (each such proposed increase being a “Foreign Currency Sublimit Increase”). Each Commitment Increase (and except that for purposes the increase of this Section 2.16(bthe applicable Commitment of each Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom), and if elected by the representations and warranties contained in Section 5.05(a) Company, the corresponding Foreign Currency Sublimit Increase, shall be deemed become effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on or prior to refer to the most recent financial statements furnished pursuant to subsection 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate of a Responsible Officer stating that the conditions with respect to such Commitment Increase under this Section 6.01 have been satisfied and (b) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its Commitment (or an increase of its applicable Commitment, as applicable), duly executed by each such Lender and the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender, together with such certificate of such Responsible Officer, the Administrative Agent shall record the information contained in such agreement in the Register and give prompt notice of the relevant Commitment Increase and if elected by the Company, the corresponding Foreign Currency Sublimit Increase, to the Company and the Lenders (including, if applicable, each Assuming Lender). On each Commitment Increase Date, if there are Loans of the applicable Class then outstanding, each applicable Borrower shall simultaneously (i) prepay in full the outstanding Loans of such Class made to such Borrower immediately prior to giving effect to the relevant Commitment Increase in accordance with Section 2.08 and (ii) no Default or Event at such Borrower’s option in accordance with this Agreement, such Borrower may request to borrow new Loans of Default exists. On each Additional Commitments Effective Date with respect to such Class from all the relevant Lenders (including, if applicable, any Additional Term CommitmentAssuming Lender) such that, 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 Dateafter giving effect thereto, the Revolving Credit Loans of such Class are held ratably by the relevant Lenders in accordance with their respective Commitments of such Class (after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(bCommitment Increase).
(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 2.16(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 . Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase any of its Commitments hereunder and any election to do so shall be in the sole discretion of such Lender.
Appears in 1 contract
Samples: Credit Agreement (American International Group Inc)
Increase in Commitments. (a) The Borrower may Company may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek (x) commitments (“Additional Revolving Credit each of the Lenders), request that the total US Tranche Commitments”) to increase the Revolving Credit , Swiss Tranche Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal or Japanese Tranche Commitments be increased by an amount of not less than $25,000,000 for any existing Class of Term Loans or to establish one or more new Classes of Term Loanssuch increase; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and PROVIDED that after giving effect to any such increase the incurrence sum of the 2016 Incremental Term B Loans total Commitments and the 2016 Incremental Revolving commitments under the 364-Day Credit Agreement shall not exceed $1,000,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 Business Days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment Increaseby its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company's notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an "INCREASING LENDER") or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a "NON-INCREASING LENDER"). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "AUGMENTING LENDER"), which may include any Lender, to extend US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, or increase their existing US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, in an aggregate amount equal to the unsubscribed amount; PROVIDED that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrowers and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence the Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments pursuant to this Section 2.10 (the "COMMITMENT INCREASE"), (x) $75,000,000 less (yi) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(ithe US Tranche Revolving Loans, Swiss Tranche Revolving Loans or Japanese Tranche Revolving Loans, as the case may be, outstanding (the "INITIAL LOANS") less immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (zii) each Increasing Lender and each Augmenting Lender that shall have been a US Tranche Lender, Swiss Tranche Lender or Japanese Tranche Lender, as the case may be, prior to the Commitment Increase shall pay to the Administrative Agent or another Agent designated by the Administrative Agent for such purpose in same day funds an amount equal to the difference between (A) the product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be (calculated after giving effect to the Commitment Increase), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be (calculated without giving effect to the Commitment Increase), multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent or another Agent designated by the Administrative Agent for such purpose in same day funds an amount equal to the product of (1) such Augmenting Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the Administrative Agent or other Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent or such other Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the applicable Borrowers shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Initial 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 Loans types and voluntary commitment reductions of Additional Revolving Credit Commitments, for the Interest Periods specified in a Borrowing Request delivered to the extent such Additional Term Loans Administrative Agent in accordance with Section 2.04, (vi) each Non-Increasing Lender, each Increasing Lender and Additional Revolving Credit Commitments were obtained each Augmenting Lender shall be deemed to hold its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the applicable Borrowers shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (Ci) below), plus (C) additional amounts so long as above in respect of each Eurocurrency Loan or TIBOR Loan shall be subject to indemnification by the Consolidated First Lien Net Leverage Ratio and Borrowers pursuant to the Consolidated Net Leverage Ratio, determined provisions of Section 2.16 if the Increase Effective Date occurs other than 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 Interest Period relating thereto and in either case incurred breakage costs result.
(c) Increases and new Commitments created pursuant to this clause (C), available under such Additional Commitments had been outstanding Section 2.10 shall become effective on the last day of such period, and, date specified in each case (x) with respect to any Additional Revolving Credit Commitment incurred the notice delivered by the Company pursuant to this clause the first sentence of paragraph (C), assuming a borrowing of the maximum amount of Loans available thereunder, and (ya) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Loansabove.
(bd) Each such notice shall specify (x) Notwithstanding the date (eachforegoing, an “Additional no increase in the 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 Class (or in any Commitment of any Lender) or addition of an Augmenting Lender 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)become effective under this Section unless, (i) on 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 date of such earlier date, and except that for purposes of this Section 2.16(b)increase, the representations and warranties contained conditions set forth in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection paragraphs (a) and (b) of Section 6.01 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the chief financial officer of the Company, and (ii) no Default or Event the Administrative Agent shall have received (with sufficient copies for each of Default exists. On each Additional Commitments the Lenders) documents consistent with those delivered on the Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan under clauses (b) and (c) of Section 4.01 as to the Borrower in a principal amount equal corporate power and authority of the applicable Borrowers 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 borrow hereunder after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b)increase.
(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 2.16(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 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
Increase in Commitments. (a) The Borrower may by written From time to time on and after the Closing Date and prior to the Tranche 1 Termination Date, the Borrowers may, upon at least 30 days notice to the Administrative Agent elect (which shall promptly provide a copy of such notice to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) Tranche 1 Lenders), propose to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
the Tranche 1 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of all Additional the Tranche 1 Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, by (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to having another lender or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 DateTranche 1 Lender”) become party to this Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(b) From time to time on which and after the Borrower proposes that Closing Date and prior to the Additional Commitments shall be effectiveTranche 2 Termination Date, which shall be a date reasonably acceptable the Borrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount which (i) is not less than $25,000,000 with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more Eligible Assignees (each, an “Additional Tranche 2 Lender” and collectively with the Additional Tranche 1 Lenders, the “Additional Lenders”) become party to this Agreement, (y) agreeing with any Tranche 2 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the procedures described in clauses (x) 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)sentence.
(c) Any other terms Upon any increase in the amount of and documentation entered the Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to this Section 2.20 (each, an “Additional Commitment”):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (each, an “Increasing Lender”) shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date, undertake an Additional Commitment (or, in respect the case of any Additional Term Commitments an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on terms such date) and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments Lender shall thereupon become (including or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(ii) The Borrowers shall in the event of an increase in the Tranche 1 Commitments, in coordination 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., repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in each case so that the Tranche 1 Lenders participate in each Borrowing pro rata on the basis of their respective Tranche 1 Commitments (after giving effect to any increase in the Tranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as a result of the actions required to be taken under this Section 2.20, shall be paid in full by the Borrowers;
(diii) The If any such Additional Commitments Lender is a Foreign Lender, such Additional Lender shall deliver the forms required by Section 2.17(d); and
(iv) Any Additional Commitment shall be documented by an Additional Credit Extension Amendment executed by subject to 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 prior written approval of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16Issuing Lender.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
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Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (x) each, an “Incremental Term Facility”; the commitments (thereunder are referred to as “Additional Revolving Credit Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) to and/or increase commitments under the Revolving Credit Commitments and/or Facility (yany such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (1) commitments total aggregate amount for all such Incremental Facilities (“Additional Term Commitments”assuming, in the case of any Incremental Revolving Increase, the full amount thereof is drawn) to increase shall not (as of any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) $25,000,000 or, if less, the aggregate remaining amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect permitted pursuant to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this foregoing clause (A1), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment In- cremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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.
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Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”; the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities (assuming, in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed (x) commitments $50,000,000 (“Additional plus, to the extent utilized to effect an Incremental Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or Increase, $20,000,000), plus (y) commitments (“Additional Term Commitments”) an amount equal to increase the aggregate principal amount sum of any existing Class all voluntary prepayments of Term Loans or made pursuant to establish one or more new Classes of Term Loans; provided that:
Section 2.09(a), plus (iz) the aggregate an additional unlimited amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Dateso long as, and after giving effect to the incurrence of such Incremental Facility (excluding the 2016 cash proceeds of any Incremental Term B Loans and for purposes of netting and, in the 2016 case of any Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) assuming the aggregate principal full amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Athereof is fully drawn), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters Test Period for which financial statements are internally availablewere required to have been delivered pursuant to Section 6.01 (or, if no Test Period has passed, as of the last four quarters ended), in each case, as if such Incremental Facility (and Revolving Loans in an amount equal to the full amount of any Additional Term Loans or Additional such Incremental Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C), available under such Additional Commitments Increase) had been outstanding on the last day of such four-quarter period, andshall not exceed 2.50 to 1.00, with the Borrower electing whether such Incremental Facility have been incurred (in each case whole or in part) under clauses (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause (Cincluding the parenthetical thereunder), assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds and/or (z) in its sole discretion. Each Class of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (Incremental Facility incurred under this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class Section 2.15 shall be in an aggregate principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be is not less than $10,000,000 (or, if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 pursuant to the date that is 18 months after the Amendment No. 1 Effective Date, parenthetical to clause (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 pointsimmediately preceding sentence, then the Applicable Rate for the Term B Loans shall be 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 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$5,000,000), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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.
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Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect in substantially the form of Exhibit “D”, request that the total Commitments be increased by an aggregate amount not to seek exceed $375,000,000; provided that the Borrower may not make more than 3 such requests. Such notice shall set forth the amount of the requested increase (xwhich shall be in a minimum amount of $100,000,000 and in minimum increments of $5,000,000 above that amount) commitments and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Commitment Termination Date). Upon the receipt of such request by the Administrative Agent, the Administrative Agent shall give notice promptly to each Bank substantially in the form of Exhibit “Additional Revolving Credit CommitmentsE”, which notice will offer each such Bank the opportunity to increase its Commitment by its applicable Pro Rata Share of the proposed increased amount. Each such Bank shall, by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit “F”, given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Bank so agreeing being an “Increasing Bank”) or decline to increase the Revolving Credit Commitments and/or its Commitment (y) commitments (“Additional Term Commitments”) and any Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate principal amount of any existing Class of Term Loans or to establish less than the increase requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Bank”), which may include any Bank, to extend Bank Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute a joinder substantially in the form of Exhibit “F” or such other documentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any such increase may be made in an amount that is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Banks. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “G” evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.9, the Accommodations Outstanding (if any) are held by the Banks in accordance with their new Classes applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of Term Loans; provided that:
the Administrative Agent, following consultation with the Borrower, (i) by requiring the aggregate amount Accommodations Outstanding to be prepaid with the proceeds of a new Accommodation, (ii) by causing Non-Increasing Banks to assign portions of their Accommodations Outstanding to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all Additional principal and interest and fees accrued as to such Accommodations up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.3, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Commitments shall not exceed become effective under this Section 2.9 unless (i) on the sum date of such increase, (A) after no Default shall have occurred and be continuing or will result from the Amendment No. 1 increase in Commitments as set forth herein and (B) the representations and warranties made by the Borrower in Section 8 shall be true and correct on and as of the date of the increase in Commitments with the same force and effect as if made on and as of such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date), (ii) the Borrower Debt Ratings assigned by S&P, Xxxxx’x and DBRS to the Index Debt shall be equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Effective Date, and Date (after giving effect to the incurrence of the 2016 Incremental Term B Loans and Commitment increase or Accommodations, as the 2016 Incremental Revolving Credit Commitment Increasecase may be), (x) $75,000,000 less (yiii) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(iAdministrative Agent shall have received a compliance certificate certifying and showing (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Administrative Agent) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause that (A), ) each of the “Incremental Dollar Basket”), plus conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (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 on a historical pro forma basis (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, after giving effect to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below)incurrence of the Commitment increase or Accommodations, 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 case may be) as of the last day of the most recently ended period of four consecutive fiscal quarters for which completed Six Month Period with respect to which, pursuant to Section 9.1, financial statements have been, or are internally availablerequired to have been, delivered by the Borrower, the Borrower would be in compliance with Section 9.10 as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C), available under such Additional Commitments had been outstanding on of 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, Six Month Period and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans Administrative Agent shall have a Weighted Average Life received all fees 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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 mutually 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 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 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 1 contract
Increase in Commitments. (a) The Borrower Request. Borrower may by written notice to the Administrative 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
request (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 availableRevolving Availability Period, as if any Additional Term Loans or Additional an increase to the Aggregate Revolving Credit CommitmentsCommitments (each, as applicable an “Incremental Revolving Increase” and in either case incurred pursuant to this 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C)collectively, the “Incremental Ratio ExceptionRevolving Increases”);
) and/or (ii) any such increase the establishment of one or any new Class shall be more tranches of term loans (each, an “Incremental Term Loan Facility” and collectively the “Incremental Term Loan Facilities”; the Incremental Revolving Increases, together with the Incremental Term Loan Facilities, each an “Incremental Facility” and collectively the “Incremental Facilities”) in an aggregate amount of $10,000,000 or any whole multiple of $500,000 not in excess thereof; provided that such amount may be of the Incremental Amount in the aggregate and not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No10.0 million individually. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 (xA) the date (each, an “Additional Commitments Increase Effective Date”) on which the Borrower proposes that the Additional Commitments an Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (yii) the identity of the Persons (each of which shall be a Person that would be an Lender or Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided, that, any existing Lender approached to provide all or a portion of the Additional Commitment any Incremental Facility may elect or decline, in its sole discretion, to be provided by each such Person. As a condition precedent to the effectiveness provide all or any portion 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)Incremental Facility.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Parent Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek (x) commitments (“Additional each of the Lenders), request that the aggregate Revolving Credit Commitments”) Commitments be increased by an amount not less than $10,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed $100,000,000. Such notice shall set forth the sum amount of the requested increase in the Revolving Commitments and the date on which such increase is requested to become effective (A) which shall be not less than 30 days or more than 60 days after the Amendment No. 1 Effective Datedate of such notice), and after giving effect shall offer each Lender the opportunity to increase its Revolving Commitment by such Lender’s Applicable Percentage of the proposed increased amount. Each Lender shall, by notice to the incurrence Parent Borrower and the Administrative Agent given not more than 10 Business Days after the date of the 2016 Incremental Term B Loans Parent Borrower’s notice, either agree to increase its applicable Revolving Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment). In the 2016 Incremental Revolving Credit Commitment Increaseevent that, (x) $75,000,000 less (y) on the aggregate principal amount 10th Business Day after the Parent Borrower shall have delivered a notice pursuant to the first sentence of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)paragraph, the Lenders shall have declined or agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Parent Borrower, the Parent Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Incremental Dollar BasketAugmenting Lender”), 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitmentswhich may include any Lender, to the extent such Additional Term Loans and Additional provide Revolving Credit Commitments 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 increase their existing Revolving Credit Commitments, as applicable and in either case incurred pursuant to this 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereofequal to the unsubscribed amount; provided that such amount may be less than $10,000,000 each Augmenting Lender, if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans not already a Lender hereunder, shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 subject to the date that is 18 months after the Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 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 approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the BorrowerBorrowers and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence the Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the aggregate Revolving Commitments may be made in an amount which is less than the increase requested by the Parent Borrower if the Parent Borrower is unable to arrange for, or chooses not to effect the provisions of this Section 2.16arrange for, Augmenting Lenders.
(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: Credit Agreement (Mac-Gray Corp)
Increase in Commitments. (a) The Borrower may by may, with the written notice to consent of the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to which consent shall not be unreasonably withheld or delayed), increase the aggregate amount of the Revolving Credit Commitments and/or by delivering a Commitment Amount Increase Request at least five (y5) commitments Business Days prior to the desired effective date of such increase (the “Additional Term CommitmentsCommitment Amount Increase”) to increase identifying an additional Lender (or additional Revolving Credit Commitments for existing Lender(s)) and the aggregate principal amount of any existing Class its Revolving Credit Commitment (or additional amount of Term Loans or to establish one or more new Classes of Term Loansits Revolving Credit Commitment(s)); provided that:
provided, however, that (i) any increase of the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with an amount in excess of $150,000,000 will require the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 approval 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 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 thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class of the aggregate amount of the Revolving Credit Commitments 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 not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity 25,000,000. The effective date of any Additional Term Loans the Commitment Amount Increase shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional Term Loans shall be determined agreed upon by the Borrower and the lenders of Administrative Agent. Upon the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to effectiveness thereof, the date that is 18 months after the Amendment No. 1 Effective Datenew Lender(s) (or, (xif applicable, existing Lender(s)) 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 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 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), (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 advance Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so amount sufficient such that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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), its Loans each Bank shall have outstanding its pro rata share of Loans. It shall be a condition to such effectiveness that (i) either no Eurodollar Loans be outstanding on 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 date of such earlier date, and except that for purposes effectiveness or the Borrower pays any applicable breakage cost under Section 1.11 incurred by any Lender resulting from the repayment 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 its Loans 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 shall not have terminated any portion of the Revolving Credit Commitments pursuant to such Person’s Additional Term CommitmentSection 1.14 hereof. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect agrees 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 2.16(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 expenses of the Administrative Agent and the Borrower, relating 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 Commitment Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Increase in Commitments. (a) The Any Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (x) each, an “Incremental Term Facility”; the commitments (thereunder are referred to as “Additional Revolving Credit Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) to and/or increase the Revolving Credit Commitments and/or (yany such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (1) commitments total aggregate amount for all such Incremental Facilities (“Additional Term Commitments”assuming, for the purposes of determining each of clauses (A) to increase and (B), in the aggregate principal amount case of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(iIncremental Revolving Increase, the full amount thereof is drawn) the aggregate amount of all Additional Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) after $450,000,000 and (B) an amount such that, subject to Section 1.03(e), at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect to thereto on a pro forma basis the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Secured 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 clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case calculated assuming (xi) 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 no proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 Incremental Facility shall be considered Unrestricted Cash and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any amounts incurred under clause (A) concurrently with amounts incurred under clause (B) will not count as Indebtedness for the purposes of calculating the Secured Leverage Ratio in clause (B) at such increase time) is less than or any new Class equal to 3.00 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such 25,000,000 or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the such Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the such Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments and/or (y) commitments (each, a “Additional Term CommitmentsCommitment Increase”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansCommitment Increase and Joinder Agreement; provided that:
(i) that after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (Ai) after the Second Amendment No. 1 Effective Date, $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness), (iv) an amount not in excess of an amount such that, after giving effect to the incurrence relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.00:1.00; provided that for purposes of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior calculating such First Lien Indebtedness incurred Leverage Ratio or Senior Secured Leverage Ratio under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), iv) (1) the “Incremental Dollar Basket”), plus proceeds from any such Commitment Increase shall not be netted from Indebtedness and (B2) all voluntary prepayments of Term Loans and voluntary commitment reductions of any Revolving Credit Commitments prior then being incurred or established shall be assumed to or simultaneous be fully drawn and (v) with respect to the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term A Loans and Additional Revolving Credit Commitments were obtained pursuant (each as defined in the Second Amendment) established under the Second Amendment on the Second Amendment Effective Date, an aggregate amount equal to $173,150,000. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (Civ) 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 clause (C), available under such Additional Commitments had been outstanding a) on the last day applicable date of determination, such period, and, Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in each case reliance on clause (xiv) with respect to any Additional Revolving Credit Commitment incurred pursuant to of this clause (C), assuming a borrowing of a) prior to the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds utilization of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this amount available under clause (Ci) of this clause(a), the “Incremental Ratio Exception”. Each such addition under this Section 2.16(a);
(ii) any such increase or any new Class . 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.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans shall be no earlier than on the Latest Maturity Date;
(iv) the date of incurrence of such Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than and (B) 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 Loan Tranche 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 Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater no less than the Applicable Rate for the Weighted Average Life to Maturity of such latest maturing Tranche of Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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.
(bc) Each Any such notice shall specify additional Revolving Credit Commitments (xthe “Additional Revolving Credit Commitments”) may be made by increasing the date Revolving Credit Commitments with the same terms (including pricing) as any existing Revolving Credit Commitments of the latest maturing Tranche of Revolving Credit Commitments.
(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 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 Commitments Effective Date”) on which and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower proposes that and the lenders providing such Commitment Increase of the final allocation thereof and 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 PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatsuch addition, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (ii)(A) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the 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 (B) no Event of Default exists before or after giving effect to such addition; provided that for purposes 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(b), the representations 2.16(e) may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions 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 “specified representations” provisions and (ii) no Default 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 or Event Section 6.01(b) or in any subsequent delivery of Default exists. financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn 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 with respect to any Additional Term CommitmentDate, (i) each Person with Lender or Eligible Assignee which is providing an Additional 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 Person’s additional Term Commitment, and such Additional Term Commitment. The Borrower Loan shall prepay any 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 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 outstanding on will be determined by the Borrower and the lenders providing such Additional Commitments Effective Date Term Loans; provided that with respect to any Additional Revolving Credit Commitment (Increase in respect of the Term B Facility that is pari passu with the existing Term B Facility in right of payment and pay any additional amounts required pursuant with respect to Section 3.05) security incurred in the first 18 months after the Closing Date for which the initial ”yield” on such Commitment Increase exceeds the “yield” at such time on the Term B Facility by more than 50 basis points, the Applicable Margin on the Term B Facility shall be increased to the extent necessary so that the “yield” applicable to keep the outstanding Revolving Credit Loans ratable Term B Facility is equal to the “yield” on such Commitment Increase minus 50 basis point (the “MFN Provision”). For purposes of the MFN Provision, “yield” shall be reasonably determined by the Administrative Agent and the Borrower; provided that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with such Commitment Increase or the existing Term B Facility (based on a four-year average life to maturity or, if lesser, remaining average life to maturity) shall be included, (x) any amendments to the Applicable Margin on the existing Term B Facility that became effective subsequent to the Closing Date but prior to the time of the addition of such Commitment Increase shall be included, (y) arrangement, structuring, underwriting fees and amendment fees paid or payable in connection with the existing Term B Facility or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Commitment Increase (regardless of whether such fees are paid to or shared in whole or in part with any revised Applicable Revolving Credit Percentages arising from lender) and any nonratable increase other fees not paid generally to all lenders ratably shall be excluded and (z) if such Commitment Increase includes any “LIBOR” interest rate floor greater than that applicable to the existing Term B Facility and such floor is applicable to existing Term B Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase. The MFN Provision shall also apply to any loan issuance otherwise permitted in Section 7.03(h)(x), 7.03(z) and 7.03(aa) that is pari passu in right of payment with the Revolving Credit Commitments. If there is Term B Facility and secured by a new Borrowing of Revolving Credit Commitments Lien 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 Collateral on a pari passu basis with Section 2.01(b)the Liens securing the Term B Facility.
(ch) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall Loans may rank pari passu or junior with respect to security with the Facilities (and if applicable, subject to an Acceptable Intercreditor Agreement) and will not be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to voluntary and mandatory prepaymentsmargin, pricing, maturity and/or fees), 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 Loan Tranche, if not substantially consistent with those the terms of the applicable Term B Loans (except to the extent permitted by Section 2.16(a)(iii)Facility, (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are acceptable to the Administrative Agent).
(dj) The Additional Commitments shall proceeds of any Commitment Increase may be documented by an Additional Credit Extension Amendment executed used by the Persons providing Borrower and its Subsidiaries for working capital and other general corporate purposes, including the Additional Commitments (financing of permitted acquisitions and the other Persons specified in the definition of Additional Credit Extension Amendment but no Investments and any other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to use not prohibited by 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 2.16Agreement.
(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: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Increase in Commitments. (a) The Any Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (x) each, an “Incremental Term Facility”; the commitments (thereunder are referred to as “Additional Revolving Credit Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) to and/or increase the Revolving Credit Commitments and/or (yany such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (1) commitments total aggregate amount for all such Incremental Facilities (“Additional Term Commitments”assuming, for the purposes of determining each of clauses (A) to increase and (B), in the aggregate principal amount case of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(iIncremental Revolving Increase, the full amount thereof is drawn) the aggregate amount of all Additional Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) after $450,000,000 and (B) an amount such that, subject to Section 1.03(e), at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect to thereto on a pro forma basis the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Secured 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 clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case calculated assuming (xi) 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 no proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 Incremental Facility shall be considered Unrestricted Cash and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any amounts incurred under clause (A) concurrently with amounts incurred under clause (B) will not count as Indebtedness for the purposes of calculating the Secured Leverage Ratio in clause (B) at such increase time) is less than or any new Class equal to 3.00 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such 25,000,000 or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the such Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the such Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion of the Additional Commitments Effective Date signed by a Responsible Officer of Incremental Facility. Notwithstanding the Borrower certifying thatforegoing, 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 no 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) notice shall be deemed to refer to required in connection with the most recent financial statements furnished Incremental Revolving Increase provided pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default existsAmendment No. 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)1.
(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 2.16(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 1 contract
Increase in Commitments. (a) The Borrower Borrowers may by written notice from time to time, on any Business Day after the Effective Date and prior to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to Termination Date so long as no Default or Event of Default exists, increase the aggregate amount of the Revolving Credit Commitments and/or by the Company delivering a Commitment Amount Increase Request at least five (y5) commitments Business Days prior to the desired effective date of such increase (the “Additional Term CommitmentsCommitment Amount Increase”) to increase identifying an additional Lender (or additional Revolving Credit Commitments for existing Lender(s)) and the aggregate principal amount of any existing Class its Revolving Credit Commitment (or additional amount of Term Loans or to establish one or more new Classes of Term Loansits Revolving Credit Commitment(s)); provided that:
provided, however, that (i) the aggregate amount of all Additional the Revolving Credit Commitments shall not at any time exceed the sum of (A) after the Amendment No. 1 Effective Date$600,000,000, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class of the aggregate amount of the Revolving Credit Commitments 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 not less than $10,000,000 25,000,000. The effective date of any Commitment Amount Increase shall be agreed upon by the Company, on behalf of the Borrowers, and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, or the existing Lenders shall make such amount represents all remaining availability under assignments (which assignments shall not be subject to the limit requirements set forth in the preceding clause (i);
(iiiSection 14.12) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 outstanding Loans incurred prior and L/C Obligations to the date that is 18 months after Lenders providing the Amendment No. 1 Effective 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 increased to the extent necessary Commitment Amount Increase so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 assignments, each Lender (including the Lenders providing the Commitment Xxxxxx Xxxxxxxx) will hold Loans and L/C Obligations equal to its Percentage of all outstanding Loans and L/C Obligations. It shall be a condition to such effectiveness that (i) either no Eurocurrency Loans be outstanding on the date of such effectiveness or the Borrowers pay any applicable breakage cost under Section 3.6 incurred by any Lender resulting from the repayment of its Loans and (ii) the Borrowers shall not have terminated any portion of the 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 Section 3.7 hereof. The Borrowers agree 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 pay 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 expenses of the Administrative Agent and the Borrower, relating 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 Commitment Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Agent, at any time after the Closing Date, eachthe Borrower may request Additional Term Commitments or 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (A) after in the Amendment No. 1 Effective Date, and after giving effect to the incurrence case of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause Clause (A), on and after the EighthTenth Amendment Effective Date, $250,000,000 the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Dollar BasketAvailability”), plus (B) all voluntary prepayments in the case of Term Loans this Clause (B), on and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with after the Additional Commitments Eighth Amendment Effective Date Date, $750,000,000 (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, the “Ratio Incremental Availability”)additional amounts to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to that in the case of this clause (CB) below), plus (C) additional amounts so long as only the Consolidated First Lien Senior NYDOCS01/1760806.13 Secured 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 Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall not exceed 4.0:1.0, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the BorrowersBorrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the BorrowersBorrower may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit CommitmentsLoans, as applicable and in either case applicable) originally designated to be incurred pursuant under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the BorrowersBorrower would be permitted to incur under this clause (CSection 2.14 the aggregate principal amount of such Indebtedness being so re-designated), 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) (A) the final maturity date of any Additional Term Loans shall be no earlier than the Latest latest Maturity Date;
Date for any then outstanding Term Loans and (ivB) the final maturity date of any Additional Term Revolving Credit Loans shall have a Weighted Average Life to Maturity equal to or greater be no earlier than the latest Maturity Date for any then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (Revolving Credit Commitments; provided that the “Outstanding Term Loans”);
(v) the Applicable Rate amortization schedule with respect to any Additional Term Loans shall be determined by the BV Borrower and the lenders Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans; provided that Loans shall be no shorter than the remaining weighted average life to maturity of the then-existing tranche of Term Loans with the latest Maturity Date, (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Loans incurred prior to the date that is 18 Commitments and/or Additional Revolving Credit Commitmentsincurred less than six months after the Tenth Amendment No. 1 Effective DateDate that utilize the Ratio Incremental Availability, the all-in yield (x) whether in the event that form of interest rate margins, original issue discount, upfront fees or, in the Applicable case of any Additional Term Commitments, a Eurodollar Rate floor greater than 0.75%, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Term Loan Facility) applicable to 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 Commitments and/or Additional Revolving Credit Commitments will be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable determined by the Borrower to BorrowersBorrower and the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Commitments and/or Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Revolving Credit Commitments, but will not be more than 0.50% higher than 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 corresponding all-in yield (after giving effect to interest rate margins (including the Additional Commitments (and assuming full utilization thereofEurodollar Rate floor), (ioriginal issue discount and upfront fees) for each then-existing tranche under the representations and warranties contained in Article V and Term Loan Facility or Revolving Credit Facility, as applicable, respectively, unless 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 interest rate margins with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional such existing Term Loan Facility are increased by an amount equal NYDOCS01/1760806.13 to the Borrower difference between the all-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 yield 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 Term Commitments Effective Date, the Revolving Credit Lenders after giving effect to such and/or 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 corresponding all-in yield on suchthe existing Term 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 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 AgentLoan Facility minus 0.50%.
(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 1 contract
Samples: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments and/or (y) commitments (each, a “Additional Term CommitmentsCommitment Increase”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansCommitment Increase and Joinder Agreement; provided that:
(i) that after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (Ai) after the Second Amendment No. 1 Effective Date, $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness), (iv) (iv1) if a Collateral Release Period is not then in effect, an amount not in excess of an amount such that, after giving effect to the incurrence relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.00:1.00 and (2) if a Collateral Release Period is then in effect, an amount not in excess of an amount such that, after giving effect to the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit relevant Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount Leverage Ratio does not exceed 3.50:1.00; provided that for purposes of Junior calculating such First Lien Indebtedness incurred Leverage Ratio or, Senior Secured Leverage Ratio or Leverage Ratio under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), iv) (1) the “Incremental Dollar Basket”), plus proceeds from any such Commitment Increase shall not be netted from Indebtedness and (B2) all voluntary prepayments of Term Loans and voluntary commitment reductions of any Revolving Credit Commitments prior then being incurred or established shall be assumed to or simultaneous be fully drawn and (v) with respect to the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term A Loans and Additional Revolving Credit Commitments were obtained pursuant (each as defined in the Second Amendment) established under the Second Amendment on the Second Amendment Effective Date, an aggregate amount equal to $173,150,000. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (Civ) 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 clause (C), available under such Additional Commitments had been outstanding a) on the last day applicable date of determination, such period, and, Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in each case reliance on clause (xiv) with respect to any Additional Revolving Credit Commitment incurred pursuant to of this clause (C), assuming a borrowing of a) prior to the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds utilization of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this amount available under clause (Ci) of this clause(a), the “Incremental Ratio Exception”. Each such addition under this Section 2.16(a);
(ii) any such increase or any new Class . 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.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans shall be no earlier than on the Latest Maturity Date;
(iv) the date of incurrence of such Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than and (B) 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 Loan Tranche 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 Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater no less than the Applicable Rate for the Weighted Average Life to Maturity of such latest maturing Tranche of Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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.
(bc) Each Any such notice additional Revolving Credit Commitments (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 specify be unsecured.
(xd) 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 in form and substance reasonably satisfactory to the date 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 Commitments Effective Date”) on which and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower proposes that and the lenders providing such Commitment Increase of the final allocation thereof and 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 PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatsuch addition, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (i) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the 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 (B) no Event of Default exists before or after giving effect to such addition; provided that for purposes 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(b), the representations 2.16(e) may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions 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 “specified representations” provisions and (ii) no Default 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 or Event Section 6.01(b) or in any subsequent delivery of Default exists. financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn 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 with respect to any Additional Term CommitmentDate, (i) each Person with Lender or Eligible Assignee which is providing an Additional 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 Person’s additional Term Commitment, and such Additional Term Commitment. The Borrower Loan shall prepay any 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 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 outstanding on will be determined by the Borrower and the lenders providing such Additional Commitments Effective Date Term Loans; provided that with respect to any Additional Revolving Credit Commitment (Increase in respect of the Term B Facility that is pari passu with the existing Term B Facility in right of payment and pay any additional amounts required pursuant with respect to Section 3.05) security incurred in the first 18 months after the Closing Date for which the initial “yield” on such Commitment Increase exceeds the “yield” at such time on the Term B Facility by more than 50 basis points, the Applicable Margin on the Term B Facility shall be increased to the extent necessary so that the “yield” applicable to keep the outstanding Revolving Credit Loans ratable Term B Facility is equal to the “yield” on such Commitment Increase minus 50 basis point (the “MFN Provision”). For purposes of the MFN Provision, “yield” shall be reasonably determined by the Administrative Agent and the Borrower; provided that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with such Commitment Increase or the existing Term B Facility (based on a four-year average life to maturity or, if lesser, remaining average life to maturity) shall be included, (x) any amendments to the Applicable Margin on the existing Term B Facility that became effective subsequent to the Closing Date but prior to the time of the addition of such Commitment Increase shall be included, (y) arrangement, structuring, underwriting fees and amendment fees paid or payable in connection with the existing Term B Facility or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Commitment Increase (regardless of whether such fees are paid to or shared in whole or in part with any revised Applicable Revolving Credit Percentages arising from lender) and any nonratable increase other fees not paid generally to all lenders ratably shall be excluded and (z) if such Commitment Increase includes any “LIBOR” interest rate floor greater than that applicable to the existing Term B Facility and such floor is applicable to existing Term B Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase. The MFN Provision shall also apply to any loan issuance otherwise permitted in Section 7.03(h)(x), 7.03(z) and 7.03(aa) that is pari passu in right of payment with the Revolving Credit Commitments. If there is Term B Facility and secured by a new Borrowing of Revolving Credit Commitments Lien 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 Collateral on a pari passu basis with Section 2.01(b)the Liens securing the Term B Facility.
(ch) Any other terms of and documentation entered into in respect of any Additional Term Commitments Loans may rank pari passu or junior with respect to security with the Facilities (and if applicable, subject to an Acceptable Intercreditor Agreement), and if a Collateral Release Period is then in effect, shall be on terms unsecured and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments 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 voluntary and mandatory prepaymentsmargin, pricing, maturity and/or fees), 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 Loan Tranche, if not substantially consistent with those the terms of the applicable Term B Loans (except to the extent permitted by Section 2.16(a)(iii)Facility, (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are acceptable 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)its Restricted Subsidiaries is engaged or will engage, and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents principally or as may be necessary or appropriateone of its important activities, in the reasonable opinion business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of the Administrative Agent and quoted terms under Regulation U of the Borrower, to effect Board of Governors of the provisions of this Section 2.16Federal Reserve System.
(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: Credit and Guaranty Agreement (Black Knight Financial Services, Inc.)
Increase in Commitments. (a) The Borrower may Company may, at any time after the Closing Date by written notice to the Administrative Agent elect to seek Agent, propose an increase in the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments hereunder (x) commitments (each such proposed increase being a “Additional Revolving Credit CommitmentsCommitment Increase”) either by having a Lender increase its Commitment of the applicable Class then in effect (each an “Increasing Lender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment of the applicable Class hereunder (each an “Assuming Lender”), in each case, with the approval of the Administrative Agent (not to be unreasonably withheld); provided that each Assuming Lender with a NAIC Tranche Commitment shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the Class of the Commitments which is being increased, (iii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iv) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (v) the Company’s election whether to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall be subject to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatfollowing additional conditions:
(i) unless the aggregate Administrative Agent otherwise agrees, the Commitment of any Assuming Lender as part of any Commitment Increase shall be in a minimum amount of all Additional Commitments at least $25,000,000;
(i) unless the Administrative Agent otherwise agrees, each Commitment Increase shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal be in an amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)at least $25,000,000;
(ii) immediately after giving effect to any such increase or any new Class Commitment Increase, the total Commitments hereunder shall be in an aggregate amount of not exceed $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 limit set forth in the preceding clause (i)5,000,000,000;
(iii) no Default has occurred and is continuing on the final maturity date of relevant Commitment Increase Date or shall result from any Additional Term Loans shall be no earlier than the Latest Maturity Date;Commitment Increase; and
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 of the Loan Parties set forth in Article V this Agreement and the other Loan Documents are shall be true and correct in all material respects (or, in the case of such representations and warranties qualified as to materiality, in all respects) on and as of the Additional Commitments Effective Date, except to the extent that such representations relevant Commitment Increase Date as if made on 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 (or, if any such representation or warranty is expressly stated to have been made as of a specific date, and except that for purposes as 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(bspecific date).
(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 2.16(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 1 contract
Samples: Credit Agreement (American International Group Inc)
Increase in Commitments. (a) The Borrower may by written notice at any time or from time to the Administrative Agent elect to seek time on one or more occasions request (x) commitments prior to the Revolving Termination Date, an increase to the existing Revolving Commitments under one or more of the Revolving Facilities (“Additional Increased Revolving Credit CommitmentsCommitment”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes of term loan Commitments (each, an “Incremental Term Loans; provided that:
(iLoan Commitment”) the aggregate in an amount of all Additional Commitments shall not less than $100,000,000 individually and in an amount not to exceed the sum of (A) after the Amendment No. 1 Effective DateShared Incremental Amount, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments the amount of any optional prepayment of any Loan including any Loan under any Increased Revolving Commitment or Incremental 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 Loans and voluntary commitment reductions of Additional Revolving Credit CommitmentsLoan Commitment other than, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained in each case, incurred pursuant to clause (C) below)below in accordance with Section 2.10 (accompanied, plus to the extent such prepayments are of Loans under any Revolving Facility and/or any Increased Revolving Commitments, by a commitment reduction in the like amount under such Revolving Facility and/or Increased Revolving Commitment) and/or the amount of any permanent reduction of any Revolving Commitment or Increased Revolving Commitment so long as, in the case of any such optional prepayment, such prepayment was not funded with the proceeds of a contemporaneous refinancing with new long-term Debt less the aggregate principal amount of all Increased Revolving Commitments or Incremental Term Loan Commitments incurred or issued in reliance on clause (B) of this Section 2.24(a) and (C) additional amounts so long as an amount of Incremental Term Loans or Increased Revolving Commitments such that the Consolidated First Lien Net Senior Secured Leverage Ratio and the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis is no more than 3.50 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are internally available, as if any Additional Term Loans determined on the applicable date on which the new or Additional Revolving Credit Commitmentsincreased Commitments shall become effective (each such date, as applicable and in either case incurred pursuant to this clause (Can “Increase Effective Date”), available under after giving effect to any such Additional Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Additional Increased Revolving Credit Commitment incurred pursuant to this clause (C)Commitments, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Term Loans or Increased Revolving Commitments (provided that (I), for the avoidance of doubt, any Incremental Term Loans or Increased Revolving Commitments incurred or issued pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively clause (C) on any Increase Effective Date on which the Senior Secured Leverage Ratio test in this clause (C) is met shall remain authorized pursuant to clause (C) if such Senior Secured Leverage Ratio test is not met as of any subsequent date and (II) each Increased Revolving Commitment or Incremental Term Loan Commitment under this Section 2.24 shall be incurred under clause (C) if clause (C) is available at the time of such incurrence up to the maximum amount available, and any additional amounts incurred at any time that clause (C) is unavailable shall be incurred under clauses (A) and/or (B) and any simultaneous incurrence under clauses (A) and/or (B) shall not be given pro forma effect for purposes of determining the Senior Secured Leverage Ratio with respect to any incurrence under clause (C); provided further that:
(i) the condition set forth in Section 5.2(c) shall be satisfied; provided that, unless otherwise agreed by the Borrower, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Acquisition, this clause (a)(i) shall be subject to customary “SunGard” or other applicable “certain funds” conditionality limitations and “specified representations” provisions;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date; provided that, unless otherwise agreed by the Borrower, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Acquisition (I) this clause (a)(ii) shall be subject to customary “SunGard” or other applicable “certain funds” conditionality limitations and “specified representations” provisions, in which case it shall only be a condition that no Default under clause (a), (b) or (g) of Section 8.1 shall have occurred and be continuing or would result therefrom and (II) such Default may be tested in accordance with Section 1.9;
(iii) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such time, the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) no existing Lender will be required to participate in any such increased or new Commitments without its consent;
(v) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments shall be, except as otherwise set forth herein or in the Increase Joinder, identical to (i) the Tranche B Term Loans (“Incremental Term B Loans”) or (ii) the Tranche A Term Loans (“Incremental Term A Loans”, and together with any Incremental Term B Loans, the “Incremental Ratio ExceptionTerm Loans”) (it being understood that Incremental Term Loans may be part of an existing Class of Term Loans); provided that the aggregate principal amount of all Incremental Term A Loans shall not exceed (A) $750,000,000 plus (B) an amount equal to the excess, if any, of (x) the amount of Tranche A Term Loans outstanding on the Closing Date less (y) the amount of Tranche A Term Loans outstanding on the applicable Increase Effective Date;
(ii) any such increase or any new Class Loans made pursuant to Incremental Term Loan Commitments shall be rank pari passu in an aggregate amount right of $10,000,000 or any whole multiple payment and 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 security with the limit set forth in the preceding clause (i)Term Loans;
(iii) the final maturity date all terms and provisions (including Maturity Date) of any Additional Term Revolving Loans made pursuant to new Commitments shall be no earlier than identical to the Latest Maturity existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(iv) the Additional weighted average life to maturity of all (x) Incremental Term B Loans shall be no shorter than the weighted average life to maturity of the existing Tranche B Term Loans and (y) Incremental Term A Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding existing Tranche A Term Loans”);
(v) the Applicable Rate maturity date of (x) all Incremental Term B Loans shall not be earlier than the latest Maturity Date with respect to any Additional the Tranche B Term Loans as then in effect and (y) all Incremental Term A Loans shall not be earlier than the latest Maturity Date with respect to the Tranche A Term Loans as then in effect; and
(vi) the interest rate margins for (x) the new Incremental Term A Loans shall be determined by the Borrower and the lenders of applicable new Lenders and (y) the Additional new Incremental Term LoansB Loans shall be determined by Borrower and the applicable new Lenders; provided that with respect to any Additional Term Loans incurred provided, however, prior to the date that is 18 twelve months after the Amendment No. 1 Effective Closing Date, (x) in the event that the Applicable Rate interest rate margins for any such Additional the new Incremental Term Loans is B Loans, shall not be greater than the Applicable Rate for the highest interest rate margins that may, under any circumstances, be payable with respect to any Tranche B Term B Loans by more than plus 50 basis points, then points (and the Applicable Rate for interest rate margins applicable to the Tranche B Term B Loans shall be increased to the extent necessary so that to achieve the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans foregoing); provided, further, that, that in determining the Applicable Rate with respect interest rate margins applicable to Additional the existing Tranche B Term Loans or Loans, and the applicable Class of Outstanding Incremental Term Loans pursuant to this clause (v)B Loans, as applicable, (Ax) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of collectively, “OID”) payable by the Borrower to the lenders providing such Additional Lenders of the existing Tranche B Term Loans or such Outstanding the Incremental Term B Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and ), (By) customary arrangement or commitment fees payable to any lead arranger arrangers (or its their respective affiliates) shall be excluded and (z) if the Incremental Term B Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase in connection with the Additional Term Loans or Outstanding interest rate margins for the Tranche B Term Loans shall be excludedrequired, to the extent an increase in the interest rate floor in the Tranche B Term Loans would cause an increase in the interest rate margins, and in such case the interest rate floor (ybut not the Applicable Margin) 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 Tranche B Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term by such increased amount. The increased or new Commitments shall be determined effected by a joinder agreement (the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 DateIncrease Joinder”) on which the Borrower proposes that the Additional Commitments shall be effectiveexecuted by Borrower, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each Lender making such increased or new Commitment, in form and substance satisfactory to 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 them. The Increase Joinder may, without 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 consent of any Additional Commitmentsother Lenders, 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 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 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 BorrowerAgent, to effect the provisions of this Section 2.162.24.
(c) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment under the applicable Revolving Facility prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment under the applicable Revolving Facility on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans under the applicable Revolving Facility (which purchases shall be deemed prepayments of such Revolving Loans for purposes of Section 2.20) and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans under the applicable Revolving Facility and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments under the applicable Revolving Facility after giving effect to such Increased Revolving Commitments under the applicable Revolving Facility.
(d) On any Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(e) This The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 2.16 10 hereof and security interests created by the Security Documents. The Loan Parties shall supersede take any provisions in Section 2.13 actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or Section 11.01 otherwise after giving effect to the contraryestablishment of any such Class of Term Loans or any such new Commitments.
Appears in 1 contract
Samples: Credit Agreement (Davita Inc.)
Increase in Commitments. (a) The Borrower may by written notice at any time or from time to the Administrative Agent elect to seek time on one or more occasions request (x) commitments prior to the Revolving Termination Date, an increase to the existing Revolving Commitments under one or more of the Revolving Facilities (“Additional Increased Revolving Credit CommitmentsCommitment”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes of term loan Commitments (each, an “Incremental Term Loans; provided that:
(iLoan Commitment”) the aggregate in an amount of all Additional Commitments shall not less than $100,000,000 individually and in an amount not to exceed the sum of (A) after the Amendment No. 1 Effective DateShared Incremental Amount, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments the amount of any optional prepayment of any Loan including any Loan under any Increased Revolving Commitment or Incremental 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 Loans and voluntary commitment reductions of Additional Revolving Credit CommitmentsLoan Commitment other than, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained in each case, incurred pursuant to clause (C) below)below in accordance with Section 2.10 (accompanied, plus to the extent such prepayments are of Loans under any Revolving Facility and/or any Increased Revolving Commitments, by a commitment reduction in the like amount under such Revolving Facility and/or Increased Revolving Commitment) and/or the amount of any permanent reduction of any Revolving Commitment or Increased Revolving Commitment so long as, in the case of any such optional prepayment, such prepayment was not funded with the proceeds of a contemporaneous refinancing with new long-term Debt less the aggregate principal amount of all Increased Revolving Commitments or Incremental Term Loan Commitments incurred or issued in reliance on clause (B) of this Section 2.24(a) and (C) additional amounts so long as an amount of Incremental Term Loans or Increased Revolving Commitments such that the Consolidated First Lien Net Senior Secured Leverage Ratio and the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis is no more than 3.50 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are internally available, as if any Additional Term Loans determined on the applicable date on which the new or Additional Revolving Credit Commitmentsincreased Commitments shall become effective (each such date, as applicable and in either case incurred pursuant to this clause (Can “Increase Effective Date”), available under after giving effect to any such Additional Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Additional Increased Revolving Credit Commitment incurred pursuant to this clause (C)Commitments, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Term Loans or Increased Revolving Commitments (provided that (I), for the avoidance of doubt, any Incremental Term Loans or Increased Revolving Commitments incurred or issued pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively clause (C) on any Increase Effective Date on which the Senior Secured Leverage Ratio test in this clause (C) is met shall remain authorized pursuant to clause (C) if such Senior Secured Leverage Ratio test is not met as of any subsequent date and (II) each Increased Revolving Commitment or Incremental Term Loan Commitment under this Section 2.24 shall be incurred under clause (C) if clause (C) is available at the time of such incurrence up to the maximum amount available, and any additional amounts incurred at any time that clause (C) is unavailable shall be incurred under clauses (A) and/or (B) and any simultaneous incurrence under clauses (A) and/or (B) shall not be given pro forma effect for purposes of determining the Senior Secured Leverage Ratio with respect to any incurrence under clause (C); provided further that:
(i) the condition set forth in Section 5.2(c) shall be satisfied; provided that, unless otherwise agreed by the Borrower, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Acquisition, this clause (a)(i) shall be subject to customary “SunGard” or other applicable “certain funds” conditionality limitations and “specified representations” provisions;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date; provided that, unless otherwise agreed by the Borrower, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Acquisition (I) this clause (a)(ii) shall be subject to customary “SunGard” or other applicable “certain funds” conditionality limitations and “specified representations” provisions, in which case it shall only be a condition that no Default under clause (a), (b) or (g) of Section 8.1 shall have occurred and be continuing or would result therefrom and (II) such Default may be tested in accordance with Section 1.9;
(iii) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such time, the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) no existing Lender will be required to participate in any such increased or new Commitments without its consent;
(v) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments shall be, except as otherwise set forth herein or in the Increase Joinder, identical to (i) the Tranche B-1 Term Loans (“Incremental Term B Loans”) or (ii) the Tranche A Term Loans (“Incremental Term A Loans”, and together with any Incremental Term B Loans, the “Incremental Ratio ExceptionTerm Loans”) (it being understood that Incremental Term Loans may be part of an existing Class of Term Loans); provided that the aggregate principal amount of all Incremental Term A Loans shall not exceed (A) $750,000,000 plus (B) an amount equal to the excess, if any, of (x) the amount of Tranche A Term Loans outstanding on the Closing Date less (y) the amount of Tranche A Term Loans outstanding on the applicable Increase Effective Date;
(ii) any such increase or any new Class Loans made pursuant to Incremental Term Loan Commitments shall be rank pari passu in an aggregate amount right of $10,000,000 or any whole multiple payment and 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 security with the limit set forth in the preceding clause (i)Term Loans;
(iii) the final maturity date all terms and provisions (including Maturity Date) of any Additional Term Revolving Loans made pursuant to new Commitments shall be no earlier than identical to the Latest Maturity existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(iv) the Additional weighted average life to maturity of all (x) Incremental Term B Loans shall be no shorter than the weighted average life to maturity of the existing Tranche B-1 Term Loans and (y) Incremental Term A Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding existing Tranche A Term Loans”);
(v) the Applicable Rate maturity date of (x) all Incremental Term B Loans shall not be earlier than the latest Maturity Date with respect to any Additional the Tranche B-1 Term Loans as then in effect and (y) all Incremental Term A Loans shall not be earlier than the latest Maturity Date with respect to the Tranche A Term Loans as then in effect; and
(vi) the interest rate margins for (x) the new Incremental Term A Loans shall be determined by the Borrower and the lenders of applicable new Lenders and (y) the Additional new Incremental Term LoansB Loans shall be determined by Borrower and the applicable new Lenders; provided that with respect to any Additional Term Loans incurred provided, however, prior to the date that is 18 twelve months after the Amendment No. 1 Effective Closing Date, (x) in the event that the Applicable Rate interest rate margins for any such Additional the new Incremental Term Loans is B Loans, shall not be greater than the Applicable Rate for the highest interest rate margins that may, under any circumstances, be payable with respect to any Tranche B-1 Term B Loans by more than plus 50 basis points, then points (and the Applicable Rate for interest rate margins applicable to the Tranche B-1 Term B Loans shall be increased to the extent necessary so that to achieve the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans foregoing); provided, further, that, that in determining the Applicable Rate with respect interest rate margins applicable to Additional the existing Tranche B-1 Term Loans or Loans, and the applicable Class of Outstanding Incremental Term Loans pursuant to this clause (v)B Loans, as applicable, (Ax) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of collectively, “OID”) payable by the Borrower to the lenders providing such Additional Lenders of the existing Tranche B-1 Term Loans or such Outstanding the Incremental Term B Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and ), (By) customary arrangement or commitment fees payable to any lead arranger arrangers (or its their respective affiliates) shall be excluded and (z) if the Incremental Term B Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B-1 Term Loans, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase in connection with the Additional Term Loans or Outstanding interest rate margins for the Tranche B-1 Term Loans shall be excludedrequired, to the extent an increase in the interest rate floor in the Tranche B-1 Term Loans would cause an increase in the interest rate margins, and in such case the interest rate floor (ybut not the Applicable Margin) 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 Tranche B-1 Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term by such increased amount. The increased or new Commitments shall be determined effected by a joinder agreement (the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 DateIncrease Joinder”) on which the Borrower proposes that the Additional Commitments shall be effectiveexecuted by Xxxxxxxx, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each Lender making such increased or new Commitment, in form and substance satisfactory to 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 them. The Increase Joinder may, without 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 consent of any Additional Commitmentsother Lenders, 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 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 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 BorrowerAgent, to effect the provisions of this Section 2.162.24.
(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: Credit Agreement (Davita Inc.)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek request (x) commitments prior to the Revolving Termination Date, an increase to the existing Revolving Commitments under one or more of the Revolving Facilities (“Additional Increased Revolving Credit CommitmentsCommitment”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes of term loan Commitments (each, an “Incremental Term Loans; provided that:
(iLoan Commitment”) the aggregate in an amount of all Additional Commitments shall not less than $100,000,000 individually and in an amount not to exceed the sum of (A) after the Amendment No. 1 Effective Date, Shared Incremental Amount and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (xB) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal an amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of or Increased Revolving Credit Commitments prior to or simultaneous with such that the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Senior Secured Leverage Ratio and the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis is no more than 3.50 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters of the Borrower 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 clause (C), available under such Additional Commitments had been outstanding determined on the last day of applicable Increase Effective Date, after giving effect to any such periodincurrence on a Pro Forma Basis, and, in each case (x) case, with respect to any Additional Increased Revolving Credit Commitment incurred pursuant to this clause (C)Commitments, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Term Loans or Increased Revolving Commitments (provided that, for the avoidance of doubt, any Incremental Term Loans or Increased Revolving Commitments incurred or issued pursuant to clause (B) on any Increase Effective Date on which the Senior Secured Leverage Ratio test in this clause (B) is met shall remain authorized pursuant to clause (B) if such Senior Secured Leverage Ratio test is not met as of any subsequent date). Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which Borrower proposes that the increased or new Commitments shall be effective, which shall be a date not fewer than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Assignee to whom Borrower proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment; provided, further, that any existing Lender that does not respond shall be deemed to have declined to provide such increased or new Commitment.
(b) The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:
(i) each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c), the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Additional Commitmentstransaction.
(c) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments shall be, do not exceed 3.75:1.00 except as otherwise set forth herein or in the Increase Joinder, identical to (i) the Tranche B Term Loans (“Incremental Term B Loans”) or (ii) the Tranche A Term Loans (“Incremental Term A Loans”, and 6.50:1.00, respectively (this clause (C)together with any Incremental Term B Loans, the “Incremental Ratio ExceptionTerm Loans”) (it being understood that Incremental Term Loans may be part of an existing Class of Term Loans); provided that the aggregate principal amount of all Incremental Term A Loans shall not exceed (A) $1,000,000,000 plus (B) an amount equal to the excess, if any, of (x) the amount of Tranche A Term Loans outstanding on the Closing Date less (y) the amount of Tranche A Term Loans outstanding on the applicable Increase Effective Date;
(ii) any such increase or any new Class Loans made pursuant to Incremental Term Loan Commitments shall be rank pari passu in an aggregate amount right of $10,000,000 or any whole multiple payment and 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 security with the limit set forth in the preceding clause (i)Term Loans;
(iii) the final maturity date all terms and provisions (including Maturity Date) of any Additional Term Revolving Loans made pursuant to new Commitments shall be no earlier than identical to the Latest Maturity existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(iv) the Additional weighted average life to maturity of all (x) Incremental Term B Loans shall be no shorter than the weighted average life to maturity of the existing Tranche B Term Loans and (y) Incremental Term A Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding existing Tranche A Term Loans”);
(v) the Applicable Rate maturity date of (x) all Incremental Term B Loans shall not be earlier than the latest Maturity Date with respect to any Additional the Tranche B Term Loans as then in effect and (y) all Incremental Term A Loans shall not be earlier than the latest Maturity Date with respect to the Tranche A Term Loans as then in effect; and
(vi) the interest rate margins for (x) the new Incremental Term A Loans shall be determined by the Borrower and the lenders of applicable new Lenders and (y) the Additional new Incremental Term B Loans shall be determined by Borrower and the applicable new Lenders; provided, however, that the interest rate margins for the new Incremental Term B Loans; provided , shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Additional Tranche B Term Loans incurred prior plus 50 basis points (and the interest rate margins applicable to the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Tranche B 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 increased to the extent necessary so that to achieve the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans foregoing); provided, further, that, that in determining the Applicable Rate with respect interest rate margins applicable to Additional the existing Tranche B Term Loans or Loans, and the applicable Class of Outstanding Incremental Term Loans pursuant to this clause (v)B Loans, as applicable, (Ax) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of collectively, “OID”) payable by the Borrower to the lenders providing such Additional Lenders of the existing Tranche B Term Loans or such Outstanding the Incremental Term B Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and ), (By) customary arrangement or commitment fees payable to any lead arranger arrangers (or its their respective affiliates) shall be excluded and (z) if the Incremental Term B Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase in connection with the Additional Term Loans or Outstanding interest rate margins for the Tranche B Term Loans shall be excludedrequired, to the extent an increase in the interest rate floor in the Tranche B Term Loans would cause an increase in the interest rate margins, and in such case the interest rate floor (ybut not the Applicable Margin) 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 Tranche B Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term by such increased amount. The increased or new Commitments shall be determined effected by a joinder agreement (the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 DateIncrease Joinder”) on which the Borrower proposes that the Additional Commitments shall be effectiveexecuted by Borrower, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each Lender making such increased or new Commitment, in form and substance satisfactory to 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 them. The Increase Joinder may, without 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 consent of any Additional Commitmentsother Lenders, 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 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 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 BorrowerAgent, to effect the provisions of this Section 2.162.24. -70-
(d) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment under the applicable Revolving Facility prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment under the applicable Revolving Facility on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans under the applicable Revolving Facility (which purchases shall be deemed prepayments of such Revolving Loans for purposes of Section 2.20) and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans under the applicable Revolving Facility and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments under the applicable Revolving Facility after giving effect to such Increased Revolving Commitments under the applicable Revolving Facility.
(e) This Section 2.16 shall supersede On any provisions in Section 2.13 or Section 11.01 Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the contrarysatisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(f) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 10 hereof and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Term Loans or any such new Commitments.
Appears in 1 contract
Samples: Credit Agreement
Increase in Commitments. (a) The If no Default, Event of Default or Material Adverse Effect shall have occurred and be continuing, the Borrower may at any time during the Availability Period request an increase of the Commitments of up to an additional $50,000,000 (the “Additional Commitment”) by written notice to the Administrative Agent elect to seek in writing of the amount of such proposed increase (xsuch notice, a “Commitment Increase Request”); provided, however, that, in the event such Commitment Increase Request is approved as described in paragraph (b) commitments below, (“Additional Revolving Credit Commitments”i) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal minimum amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
such increase shall be $10,000,000 and (iii) the aggregate amount of all Additional the Lenders’ Commitments shall not exceed $200,000,000.
(b) Any such Commitment Increase Request shall first be made to the sum Administrative Agent in its capacity as a Lender. The Administrative Agent, as a Lender, may agree to increase its Commitment or not in its sole discretion and shall notify the Borrower of such determination and, if such request for an increase is approved, the portion of the Additional Commitment that will be provided by the Administrative Agent, in its capacity as a Lender, within 30 days of the receipt thereof.
(Ac) In the event the Administrative Agent, in its capacity as a Lender, elects not to increase its Commitment by the full amount of the Additional Commitment, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld, conditioned or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the opportunity to participate in the remaining portion of the Additional Commitment pursuant to paragraph (d) or (e) below, as applicable, by notifying the Administrative Agent and such proposed lenders of the opportunity to participate in the remaining portion of such unsubscribed portion of the Additional Commitment.
(d) Any additional bank or financial institution that the Borrower selects to offer participation in the Additional Commitment shall execute and deliver to the Administrative Agent a New Lender Agreement setting forth its Commitment, and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed amended to increase the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Commitment of any New Lender shall be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders or increasing Lenders.
(e) Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall execute a Commitment Increase Agreement with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed to be amended to reflect such increase. Any Commitment Increase Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders and increasing Lenders.
(f) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(g) If any bank or financial institution becomes a New Lender pursuant to Section 2.20(c) or any Lender’s Commitment is increased pursuant to Section 2.20(d), additional Loans made on or after the Amendment No. 1 Effective effectiveness thereof (the “Re-Allocation Date, and ”) shall be made pro rata based on their respective Commitments in effect on or after giving effect such Re-Allocation Date (except to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the extent that any such pro rata borrowings would result in any Lender making an aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal Loans in excess of its Commitment, in which case such excess amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)will be allocated to, the “Incremental Dollar Basket”)and made by, plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit such New Lender and/or Lenders with such increased Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans of, and Additional Revolving Credit Commitments were obtained pursuant to clause (C) belowpro rata based on, their respective Commitments), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio and the Consolidated Net Leverage Ratio, determined continuations of Loans outstanding on a Pro Forma Basis as such Re-Allocation Date shall be effected by repayment of such Loans on the last day of the most recently ended period Interest Period applicable thereto or, in the case of four consecutive fiscal quarters for which financial statements are internally availableABR Loans, as if on the date of such increase, and the making of new Loans of the same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(h) If on any Additional Term Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans or Additional Revolving Credit Commitments, as shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to prepay any thereof in accordance with the applicable and in either case incurred pursuant to provisions of this clause (CAgreement), available under and interest on and repayments of such Additional Commitments had been outstanding Eurodollar Loans will be paid thereon to the respective Lenders holding such Eurodollar Loans pro rata based on the last day respective principal amounts thereof outstanding.
(i) Upon the effectiveness of such periodany Commitment Increase Agreement, and, in each case (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause (CSection 2.09(b), assuming a borrowing of Schedule 2.01 and other pertinent sections hereof shall be automatically and proportionately modified to reflect the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C)increased Commitment, the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life exact figures 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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Administrative Agent, and all references to 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)amended mutatis mutandis.
(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 2.16(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 1 contract
Samples: Credit Agreement (Stewart Information Services Corp)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Effective Date and prior to seek the Latest Maturity Date, on one or more occasions (x) commitments (“Additional but not more than three), request to incur one or more Incremental Term Loan Commitments and/or increase the aggregate amount of the Revolving Facility by obtaining one or more Incremental Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the , in an aggregate principal amount of any existing Class of Term Loans or not to establish exceed $100,000,000, from one or more new Classes Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Loans; provided that:
Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and solely with respect to any Incremental Revolving Credit Lender, each LC Issuer and the Swing Line Lender, in each case in their respective reasonable discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Such notice shall set forth (i) the aggregate amount of all Additional the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than five Business Days nor more than 60 days after the Amendment No. 1 Effective Datedate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”); provided that (a) no commitment of any Lender may be increased without consent of such Lender, and (b) except as otherwise agreed by the Lenders (in their sole discretion) providing the Incremental Facility in connection with an acquisition or other Investment permitted under this Agreement, no Default or Event of Default exists immediately before or after giving effect thereto. Notwithstanding anything contained herein to the incurrence contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans; provided that the Borrower may increase the pricing of the 2016 Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional upfront fees.
(b) The Borrower and each Incremental Term B Loans Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Maturity Date;
, (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders average life to maturity of the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to , (iii) until the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any Other Term Loans, if the Initial Yield on such Additional Other Term Loans is greater than the Applicable Rate for the Term B Loans exceeds by more than 50 basis pointspoints the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate Margin then in effect for the each such affected Type of Term B Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the extent necessary so that sum of (x) the Applicable margin above the Adjusted Eurodollar Rate for the Additional on such Other Term Loans is not more than 50 basis points higher than the 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable increased by the Borrower amount any “LIBOR floor” applicable to the lenders providing such Additional Other Term Loans or on the date such Outstanding Other Term Loans in are made exceeds the primary syndication thereof Adjusted Eurodollar Rate) plus (with OID being equated to interest based on y) if the Lenders making such Other Term Loans receive an assumed four-year upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront fee divided by the lesser of (A) the average life to maturity) shall be included maturity of such Other Term Loans and (B) customary arrangement or commitment fees payable to any lead arranger four, (or its affiliatesiv) in connection with the Additional Term Loans or Outstanding Incremental Term Loans shall be excludeddenominated in Dollars, 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viiiv) the Additional Other Term Loans shall rank pari passu or junior in right of payment and of security with the existing Loans; and
(ix) other Credit Facilities or may be unsecured. The other terms of the Additional Incremental Term Loans may have optional prepayment and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms (including call protection and prepayment premiums) and mandatory prepayment terms as may applicable to the Term Loans hereunder shall otherwise be agreed between reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of its Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and the lenders of the Additional Term Loans provisions so long as such Additional Other Term Loans do remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. For the avoidance of doubt, any Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not participate on a greater than pro rata basis basis) as the Term Loans in any such voluntary or mandatory prepayments hereunder, as compared specified in the applicable amendment documenting such Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term B Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 10.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. For the avoidance of doubt, none of the Borrower or its Subsidiaries or their respective Affiliates may provide any Incremental Revolving Credit Commitment or Incremental Term Loan.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 7.07.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(be) Each such notice shall specify (x) On the effective date (eachof any Incremental Revolving Credit Commitments, 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 may take any and (y) the identity of the Persons (each of which shall all action as may 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 reasonably necessary to be provided by each such Person. As a condition precedent to ensure that, upon the effectiveness of any Additional such Incremental Revolving Credit Commitments, (i) Revolving Loans made under such Incremental Revolving Credit Commitments are included in each Borrowing of outstanding Revolving Loans on a pro rata basis and (ii) the Borrower shall deliver to Lender providing such Incremental Revolving Credit Commitments shares ratably in the Administrative Agent a certificate dated as Aggregate Revolving Facility Exposure. Each of the Additional Commitments Effective Date signed by Revolving Lenders shall participate in any new Revolving Loans made on or after such date on a Responsible Officer of the Borrower certifying that, before and pro rata basis based upon such Lender’s Revolving Facility Percentage after giving effect to the Additional increase in Revolving Commitments (and assuming full utilization thereof)contemplated by Section 2.17. On the effective date of any Incremental Revolving Credit Commitments, each Lender providing any such additional Revolving Commitments (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 will be deemed to refer to have purchased a participation in each then outstanding Letter of Credit on a pro rata basis based upon such Lender’s Revolving Facility Percentage of such Letters of Credit and the most recent financial statements furnished pursuant to subsection (a) participation of Section 6.01 each other Revolving Lender in such Revolving Facility Letters of Credit shall be adjusted accordingly and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitmentwill acquire, 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 will 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 2.16(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 , for the Persons providing the Additional Commitments (and the other Persons specified in the definition account of Additional Credit Extension Amendment but no other existing each 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 immediately available funds, an amount equal to) its pro rata share based upon such Lender’s Revolving Facility Percentage of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16outstanding Revolving Facility LC Participation.
(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: Credit Agreement (TopBuild Corp)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments and/or (y) commitments (each, a “Additional Term CommitmentsCommitment Increase”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansCommitment Increase and Joinder Agreement; provided that:
(i) that after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (i) $375,000,000, (ii) (A) after in the Amendment No. 1 Effective Datecase of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness) and (iv) an amount not in excess of an amount such that, after giving effect to the incurrence relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.50:1.00; provided that for purposes of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior calculating such First Lien Indebtedness incurred Leverage Ratio or Senior Secured Leverage Ratio under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Aiv), (1) the “Incremental Dollar Basket”), plus proceeds from any such Commitment Increase shall not be netted from Indebtedness and (B2) all voluntary prepayments of Term Loans and voluntary commitment reductions of the Revolving Credit Commitments prior shall be assumed to be fully drawn. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments any portion of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (Civ) 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 clause (C), available under such Additional Commitments had been outstanding a) on the last day applicable date of determination, such period, and, Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in each case reliance on clause (xiv) with respect to any Additional Revolving Credit Commitment incurred pursuant to of this clause (C), assuming a borrowing of a) prior to the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds utilization of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this amount available under clause (Ci) of this clause(a), the “Incremental Ratio Exception”. Each such addition under this Section 2.16(a);
(ii) any such increase or any new Class . 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; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 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 1 contract
Samples: Credit and Guaranty Agreement
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek (x) commitments (“Additional Revolving Credit Commitments”) to each of the Banks), request that the total Commitments be increased by an amount not less than $25,000,000 for any such increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) and not greater than $250,000,000 minus the aggregate amount of prior or simultaneous increases of the Commitments under this Agreement and the Multi-Year Agreement. Such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 45 days or more than 60 days after the date of such notice), and shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice to the Borrower and the Administrative Agent given not more than 20 days after the date of the Borrower's notice, either agree to increase its Commitment by all Additional or a portion of the offered amount (each Bank so agreeing being an "INCREASING BANK") or decline to increase its Commitment (and any Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this paragraph (a) being called an "AUGMENTING BANK"), which may include any Bank, to extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Bank, if not already a Bank hereunder, shall be -------- subject to the approval of the Administrative Agent (which approval shall not exceed be unreasonably withheld) and each Augmenting Bank shall execute all such documentation as the sum Administrative Agent shall specify to evidence its Commitment and its status as a Bank hereunder. Increases and new Commitments created pursuant to this paragraph (a) shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (Aor in the Commitment of any Bank) after shall become effective under this paragraph unless, (i) on the Amendment No. 1 Effective Datedate of such increase, the conditions set forth in paragraphs (b) and (c) of Section 3.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Banks) documents consistent with those delivered under clauses (b) and (c) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(b) On the incurrence effective date (the "INCREASE EFFECTIVE DATE") of any increase in the 2016 Incremental Term B Loans and total Commitments pursuant to paragraph (a) above (the 2016 Incremental Revolving Credit Commitment Increase"COMMITMENT INCREASE"), (x) $75,000,000 less (yi) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(ithe Loans outstanding (the "INITIAL LOANS") less immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (zii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that shall not have been a Bank prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non- Increasing Bank the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount Initial Loans in this clause (A)the currency or currencies, and of the “Incremental Dollar Basket”), plus (B) all voluntary prepayments types and for the Interest Periods specified in a Notice 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, Borrowing delivered to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Administrative Agent in either case incurred pursuant to this clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case (x) accordance 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective DateSection 2.02, (xvi) 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 pointseach Non-Increasing Bank, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which each Increasing Bank and each Augmenting Bank shall be deemed to constitute like amounts hold its Applicable Percentage of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof each Subsequent Borrowing (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 calculated after giving effect to the Additional Commitments (and assuming full utilization thereof), (iCommitment Increase) 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 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 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.and
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Increase in Commitments. (a) The Borrower may by written Provided there exists no Default, upon notice to the Administrative Agent elect (which shall promptly notify the applicable Lenders), the Borrower may from time to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase time request the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes term loan or revolving commitments (a “New Loan Commitment”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of Term Loans$500,000,000; provided that:
that any New Loan Commitment shall be in a minimum principal amount of $50,000,000 or a whole increment of $5,000,000 in excess thereof. The Borrower (in consultation with the Administrative Agent) shall specify in such notice (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)requested New Loan Commitment, the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 the “Additional Commitments Increase Effective Date”) on which the Borrower proposes that the Additional Commitments such New Loan Commitment shall be effective, effective (which shall in no event be a less than fifteen Business Days from the date reasonably acceptable of delivery of such notice to the Lenders) and (iii) whether such New Loan Commitment is to be for Term Loans or Committed Loans. Each Lender shall notify the Administrative Agent and (y) at least five Business Days prior to the identity of the Persons (each of which shall be Increase Effective Date whether or not it agrees to provide 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 requested New Loan Commitment (and, if so, the principal amount it proposes to be provided by each such Personprovide). As a condition precedent Notwithstanding anything herein to the effectiveness contrary, no Lender shall have any obligation to provide any portion of the requested New Loan Commitment and any Additional Commitments, election to do so shall be in the Borrower shall deliver sole discretion of such Lender. Any Lender not responding by 5:00 p.m. (New York City time) on the date five Business Days prior to the Administrative Agent a certificate dated as of the Additional Commitments Increase 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 have declined to provide any portion of 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 requested New Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Administrative Agent shall notify the Borrower shall prepay any Revolving Credit Loans outstanding on of the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) Lenders’ responses to the extent necessary to keep requested New Loan Commitment. To achieve 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 full amount of 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 requested New Loan Commitment 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 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that subject 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 consent of the Administrative Agent (and in the case of a New Loan Commitment for Committed Loans, each L/C Issuer and the BorrowerSwing Line Lender) pursuant to Section 10.06, the Borrower may also invite additional Eligible Assignees to effect become Lenders. The Administrative Agent and the provisions Borrower shall determine the final allocation of this Section 2.16the requested New Loan Commitment; provided that the Borrower shall not be required to allocate any portion of such New Loan Commitment to existing Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the final allocation of the requested New Loan Commitment.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
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Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Closing DateCovenant Amendment Period and prior to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Term Loan Maturity Date, request on one or more occasions, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the in an aggregate principal amount of any existing Class of Term Loans or not to establish one or more new Classes of Term Loans; exceed $50,000,000 (provided that:
(i) that the aggregate amount of all Additional Incremental Revolving Credit Commitments shall not exceed $10,000,000) from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the sum approval of the Administrative Agent in its reasonable discretion. Such notice shall set forth (Ai) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the Amendment Nodate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). 1 Effective Date, and after giving effect Notwithstanding anything contained herein to the incurrence of contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the 2016 terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrower may seek Incremental Term B Loans Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, available under such Additional Commitments had been outstanding on that, without 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 prior written consent of the maximum amount of Loans available thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
Date and (ivii) the Additional Term Loans shall have a Weighted Average Life weighted average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders weighted average life to maturity 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 Amendment No. 1 Effective 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 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Other Term Loans or exceeds by more than 50 basis points the applicable Class sum of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount the margin then in effect for Term Loans that are EurodollarTerm SOFR Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “OIDYield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) or the margin above the Adjusted Eurodollar RateTerm SOFR on such Other Term Loans (which shall be increased by the amount any “LIBORbenchmark floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar RateTerm SOFR) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (which shall be deemed to constitute like amounts including original issue discount where the amount 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 discount is equated to interest based on an assumed four-four year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) shall be included directly or indirectly from Holdings, the Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) customary arrangement or commitment fees payable four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to any lead arranger (or its affiliates) in connection the extent not consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” terms applicable to the Outstanding Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term B Loans remain outstanding and such additional rights and provisions shall be increased so that deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the applicable part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “floor” is Incremental Amendment”) and furnished to the same;other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(vic) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional All Incremental Term Loans shall rank pari passu in right of payment and security with the existing Loans; and
(ix) the Additional initial 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 guaranteed by 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 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 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 AgentGuarantors.
(d) The Additional Commitments Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (satisfied 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 shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, to effect (ii) the provisions of this Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 2.167.07.
(e) This Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actionactions as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 2.16 3.02 shall supersede apply to any provisions conversion of EurodollarTerm SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13 or Section 11.01 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the contraryterms and conditions applicable to the Revolving Facility.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect from time to seek (x) commitments (“Additional Revolving Credit Commitments”) time, request Incremental Term Loan Commitments in amounts not to increase exceed the Revolving Credit Commitments and/or (y) commitments (“Additional Incremental Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish Loan Amount from one or more new Classes Incremental Term Lenders, which may include any existing Lender (each of Term Loanswhich shall be entitled to agree or decline to participate in its sole discretion); provided that:
that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, Loan Commitments being requested (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate minimum increments of $1,000,000 and a minimum amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that equal to the remaining Incremental Term Loan Amount), (ii) the date on which such amount may Incremental Term Loan Commitments are requested to become effective (which shall not be less than $10,000,000 if 10 Business Days nor more than 60 days after the date of such amount represents all remaining availability under notice, unless otherwise agreed to by the limit set forth Agent) and (iii) whether such Incremental Term Loan Commitments are to be Commitments to make Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the preceding clause Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
Date and (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be no shorter than the average life to maturity of the Term Loans; and provided further that, if the initial yield on such Other Term Loans (as determined by the Borrower and the lenders of the Additional Term Loans; provided that with respect Agent to any Additional Term Loans incurred prior be equal to the date that is 18 months after the Amendment No. 1 Effective Date, sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the event definition thereof) that the Applicable Rate would be in effect for any a three-month Interest Period commencing on such Additional date) and (y) if such Other Term Loans is greater are initially made at a discount or the Lenders making the same receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from Holdings, the Applicable Rate for Borrower or any Subsidiary (the amount of such discount or upfront fee, expressed as a percentage of the Other Term B Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis pointspoints the sum of (A) the margin then in effect for LIBO Rate Term Loans of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Rate then in effect for such LIBO Rate Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such LIBO Rate Term Loans of such Class on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) one-quarter of the amount of OID initially paid in respect of the Term Loans of such Class (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate then in effect for the each such affected Class of Term B Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The other terms of the Incremental Term Loans and the Incremental Loan Assumption Agreement, to the extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate terms applicable to the Term B Loans hereunder, shall otherwise be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable reasonably satisfactory to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing Loans; 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 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 Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or the Restricted Subsidiaries or are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and warranties specifically refer provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Agent shall promptly notify each Lender as to an earlier datethe effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment evidenced thereby as provided for in which case they Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, at the time of and immediately after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom, the conditions set forth in clauses (i)(i) and (i)(ii) of Section 4.01 shall be satisfied and the Agent shall have been true received a certificate to that effect dated such date and correct executed by a Financial Officer of the Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date and (iii) the Consolidated Secured Debt Ratio would be no greater than 4.00 to 1.00 after giving effect to such Incremental Term Loan Commitment and the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in all material respects as each Borrowing of such earlier dateoutstanding Term Loans on a pro rata basis, and except the Borrower agrees that for purposes Section 2.15 shall apply to any conversion of this Section 2.16(b)LIBO Rate Term Loans to ABR Term Loans reasonably required by the Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the representations and warranties contained in scheduled amortization percentages under Section 5.05(a2.08(a) shall be deemed to refer apply 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 aggregate principal amount equal to of such Person’s Additional Incremental 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 date 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 2.16(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 Agentmade.
(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 1 contract
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent, at any time after the Effective Date, the Borrower may request that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent elect to seek within 10 Business Days after Borrower’s request), (x) commitments (“the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish Borrower may identify one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall financial institutions which are not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 existing Lenders that are internally available, as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $100,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the identity terms of the Persons (each of which any Additional Revolving Credit Advances shall be a Person the same as those for the existing Revolving Credit Advances, except 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 shall be permitted to pay upfront fees to the Additional Revolving Credit Lenders in amounts to be agreed. Notwithstanding anything contained herein to the contrary, the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments.
(b) Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the portion of the Additional Commitment to be provided by each such PersonRevolving Credit Lenders. As a condition precedent to the effectiveness of any the Additional CommitmentsRevolving Credit Commitment Amendment, the Borrower shall deliver to the Administrative Agent a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date 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)such increase, (i) the representations and warranties of the Loan Parties contained in Article V IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true date and correct in all material respects as without duplication of such earlier date, and except that for purposes of this Section 2.16(bany materiality qualifiers applicable thereto), 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 existsexists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith. On each Additional Revolving Credit Commitments Effective Date with respect to Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Revolving Credit Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan Revolving Credit Advance to the Borrower Company 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 (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 Advance shall make such be a “Revolving Credit Loans in accordance with Section 2.01(b)Advance” for all purposes of this Agreement and the other Loan Documents.
(c) Any other terms of Additional Revolving Credit Commitment Amendment and any related documentation entered into in respect may, without the consent of any Lenders (other than Additional Term Commitments shall be on terms and pursuant Revolving Credit Lenders that are party to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepaymentsRevolving Credit Commitment Amendment), 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 effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatereasonably necessary, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(ed) This Section 2.16 2.18 shall supersede any provisions in Section 2.13 or Section 11.01 9.01 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 Revolving Credit Commitment.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may Parent shall have the right, at any time and from time to time after the Effective Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Commitments (each such requested increase, a “Commitment Increase”), by having one or more existing Banks increase their respective Commitments then in effect (each, an “Increasing Bank”), by adding as a Bank with a new Commitment hereunder one or more Persons that are not already Banks (each, an “Additional Bank”), or a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or, unless the Administrative Agent elect to seek otherwise consents, a higher integral 48 multiple of $5,000,000, (xii) 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and immediately after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit any Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) all Commitment Increases effected after the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 thereundershall not exceed $500,000,000, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender Bank shall be required obligated to provide increase its Commitment as a result of any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined request for a Commitment Increase by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu Parent unless it agrees in right of payment and 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 its sole discretion to do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Term B Loansso.
(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 Bank must qualify as an Eligible Assignee (for this purpose treating a Lender the approval of Additional Commitments as if it were which by the Administrative Agent, each Fronting Bank that has Issued an assignee)) whom the Borrower proposes would provide the Additional Commitments outstanding Letter of Credit and the portion of Swingline Bank shall not be unreasonably withheld, conditioned or delayed) and the Parent and each Additional Commitment to be provided by each Bank shall execute a joinder agreement together with all such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to other documentation as the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatmay reasonably require, before all in form 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 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 Term B Loans (except to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be substance reasonably satisfactory to the Administrative Agent, to evidence the Commitment of such Additional Bank and its status as a Bank hereunder.
(dc) The Additional If the aggregate Commitments are increased in accordance with this Section, (i) the Parent shall determine the final amount and allocation of such increase and (ii) the Administrative Agent and the Parent shall determine the effective date (the “Commitment Increase Date,” which shall be documented by an Additional Credit Extension Amendment executed by a Business Day not less than 30 days prior to the Persons providing Maturity Date) of such increase. The Administrative Agent shall promptly notify the Additional Commitments (Parent and the other Persons specified in Banks of the definition final amount and allocation of Additional Credit Extension Amendment but no other existing Lender), such increase and the Additional Credit Extension Amendment may provide for such Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Banks, to enter into any amendments to this Agreement and the other Loan Documents as may the Administrative Agent shall reasonably deem appropriate to effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.19 to the contrary, no increase in the aggregate Commitments pursuant to this Section 2.19 shall be necessary effective unless:
(i) The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Bank, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Bank, a duly executed joinder agreement together with all other documentation required by the Administrative Agent pursuant to Section 2.19(b);
(B) an instrument, duly executed by each Borrower, acknowledging and reaffirming its obligations under this Agreement and the other Loan Documents;
(C) unless covered by resolutions previously delivered hereunder, a certificate of the secretary or appropriatean assistant secretary or other appropriate officer of each Borrower, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such Borrower approving or consenting to such Commitment Increase;
(D) a certificate of a Responsible Officer, certifying that (y) as of the Commitment Increase Date, all representations and warranties of the Borrowers contained in this Agreement and the other Loan Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, both immediately before and after giving effect to the Commitment Increase (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case as of such date), and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase; and
(ii) If there is a non-ratable increase in the reasonable opinion aggregate Commitments, each outstanding Syndicated Letter of Credit shall have been amended giving effect to the reallocation of the Commitments or, if required, returned by each respective beneficiary to the Administrative Agent and cancelled and/or exchanged for a new or amended Syndicated Letter of Credit giving effect to the Borrowerreallocated Commitments; and
(iii) In the case of any Credit Extension in connection with such Commitment Increase, the conditions precedent set forth in Section 4.02 shall have been satisfied. To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Commitments, on the Commitment Increase Date, (i) all then outstanding LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, the applicable Borrowers shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Bank shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Bank’s Pro Rata Share (calculated without giving effect to the Commitment Increase) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Bank the portion of such funds equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Bank’s Pro Rata Share (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Banks shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitment (calculated after giving effect to the Commitment Increase), (vi) each applicable Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Banks entitled thereto, and (vii) Schedule I shall automatically be amended to reflect the Commitments of all Banks after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be subject to indemnification by the applicable Borrowers pursuant to the provisions of this Section 2.162.17 if the Commitment Increase Date occurs other than on the last day of the Interest Period relating thereto. Notwithstanding the foregoing, the Parent and the Administrative Agent may agree upon other methods of implementing a Commitment Increase (including a phase-in of a Commitment Increase with certain Banks having temporary risk participations in outstanding Revolving Loans pending the end of Interest Periods for LIBOR Loans) so long as the applicable method is not materially disadvantageous to any Bank.
(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: Credit Agreement (ACE LTD)
Increase in Commitments. (a) The At any time prior to the Business Day immediately preceding the later of the Revolving Maturity Date or the Term Maturity Date, as applicable, the Borrower may by written notice to effectuate one or more increases in the Administrative Agent elect to seek (x) commitments (“Additional aggregate Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans Commitments or to establish add one or more new Classes term loan facilities hereunder (each such increase or new term loan facility being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its Revolving Commitment and/or its Term LoansCommitment or provide a new term loan commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided provided, however, that:
(i) each such Commitment Increase shall be equal to at least C$5,000,000;
(ii) the aggregate amount of all Additional Commitments such Commitment Increases shall not exceed the sum of C$43,920,000;
(Aiii) after the Amendment No. 1 Effective Date, no Default shall exist immediately prior to and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit any such Commitment Increase;
(iv) after giving pro forma effect to the making of any Term Advances in connection with an increase in the Term Commitment, or any such new additional term loans under a new term loan facility, or any Revolving Advances made on the effective date of any such Commitment Increase involving an increase in the Revolving Commitments, (x) $75,000,000 less (yA) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) Borrower shall be in pro forma compliance with the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount covenants set forth in this clause (A)Sections 6.16 and 6.17, the “Incremental Dollar Basket”), plus and (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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Ratioshall be no greater than 2.00 to 1.00 for each fiscal quarter ending on or after September 30, 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)2014;
(iiv) no Lender shall be required or otherwise obligated to provide any such increase Commitment Increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess portion thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iiivi) the final scheduled maturity date of any Additional Term Loans new term loan facility shall be no earlier than the Latest Term Maturity Date;
(iv) Date and the Additional Term Loans weighted average life of such new term loan facility shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life to Maturity weighted average life of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”)Facility;
(vvii) the Applicable Rate with respect interest rate margins and (subject to clause (vi) above) amortization schedule applicable to any Additional Term Loans new term loan facility shall be determined by the Borrower and the lenders of the Additional Term LoansLenders under such new term loan facility; provided that with respect to any Additional Term Loans incurred prior to the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate interest rate margins for any such Additional Term Loans is greater new term loan facility are higher than the Applicable Rate interest rate margins for the Term B Loans by more than 50 basis pointsFacility, then the Applicable Rate interest rate margins for the Term B Loans Facility shall be increased to the extent necessary so that such interest rate margins are equal to the Applicable Rate interest rate margins for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans such new term loan facility; provided, further, that, that in determining the Applicable Rate with respect interest rate margins applicable to Additional such new term loan facility and the Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v)Facility, (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-four year life to maturitymaturity or, with respect to such new term loan facility, if less, the then remaining life to maturity thereof) payable by the Borrower to the Lenders under the Term Facility or such new term loan facility in the initial primary syndication thereof shall be included and (B) customary arrangement or arrangement, structuring, underwriting, amendment and/or commitment fees payable to any lead arranger (or its affiliatesaffiliates thereof) in connection with the Additional Term Loans Facility or Outstanding Term Loans to one or more arrangers (or their affiliates) of any such new term loan facility shall be excluded, excluded (it being understood that the effects of any 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 Term B Loans all interest rate floors shall be increased so that included in determining the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (ivinterest rates under this provision), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) except as set forth above, the Additional Term Loans other terms and documentation in respect of any such new term loan facility shall rank pari passu in right of payment and security be consistent with the existing LoansTerm Facility; and
(ix) each such Commitment Increase in the Additional Term Loans may Revolving Facility shall have optional prepayment terms the same terms, other than interest rate, commitment fees and upfront fees, as the existing Revolving Facility; provided that in the event that the interest rate margins or commitment fees for any such Commitment Increase are higher than the interest rate margins or commitment fees for the existing Revolving Facility, then the interest rate margins or commitment fees for the existing Revolving Facility shall be increased to the extent necessary so that such interest rate margins or commitment fees, as applicable, are equal to the interest rate margins or commitment fees, as applicable, for such Commitment Increase; provided, further, that in determining the interest rate margins applicable to such Commitment Increase and the existing Revolving Facility, (including call protection and prepayment premiumsx) upfront fees payable by the Borrower to the Lenders under such Commitment Increase or the existing Revolving Facility in the initial primary syndication thereof (with such upfront fees being equated to interest based on assumed four-year life to maturity or, with respect to any such Commitment Increase, if less, the then remaining life to maturity thereof) and mandatory prepayment terms as may the effects of any and all interest rate floors shall be agreed between included and (y) customary arrangement, structuring, underwriting, amendment and/or commitment fees payable to any lead arranger (or affiliates thereof) in connection with the existing Revolving Facility or to one or more arrangers (or their affiliates) of any such Commitment Increase shall be excluded. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.17 to the Administrative Agent and the Lenders. This Section 2.17 shall not be construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower and or to arrange for any other Person to advance or to commit to advance any credit to 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 LoansBorrower.
(b) Each such notice The Commitment Increase shall specify (x) become effective on the date (each, an the “Additional Commitments Effective Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the Borrower proposes that receipt by the Additional Commitments shall be effective, which shall be a date Administrative Agent of (A) an agreement in form and substance reasonably acceptable satisfactory to the Administrative Agent signed by the Borrower, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, if any of the terms of such Commitment Increase differs from the Term Facility or the Revolving Facility, as applicable, (B) an amendment to this Agreement signed by the Borrower, the Administrative Agent and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Article 2 to account for the terms of such Commitment Increase, and (yC) such evidence of appropriate authorization on the identity part of the Persons Borrower with respect to such Commitment Increase and such customary legal opinions as the Administrative Agent may reasonably request, (ii) in the case of any Commitment Increase in respect of the Revolving Commitments, the funding by each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Increasing Lender and Additional Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment Revolving Advances to be provided made by each such Person. As a condition precedent Lender to effect the effectiveness reallocations required in clause (c) below, (iii) the funding by each Increasing Lender and Additional Lender of any Additional Commitmentsthe Term Advances to be made on the Increase Date, if any, in the Borrower shall deliver to amount of such Lender’s increased Term Commitment, (iv) receipt by the Administrative Agent of a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer an authorized officer of the Borrower certifying that, that (A) both before and after giving effect to the Additional Commitments (such Commitment Increase, no Default has occurred and assuming full utilization thereof)is continuing, (iB) the all representations and warranties contained made by the Borrower in Article V and the other Loan Documents this Agreement are true and correct in all material respects on and as of the Additional Commitments Effective Date, (except to the extent that such materiality qualifier shall not be applicable to any representations and warranties specifically refer that already are qualified or modified by materiality in the text thereof), unless such representation or warranty relates to an earlier date, in date which case they shall have been remains true and correct in all material respects as of such earlier date, and date (except that for purposes of this Section 2.16(b), the such materiality qualifier shall not be applicable to any representations and warranties contained that already are qualified or modified by materiality in Section 5.05(athe text thereof), and (C) shall be deemed to refer the pro forma compliance with the covenants in Sections 6.16 and 6.17, after giving pro forma effect to the most recent financial statements furnished pursuant to subsection (a) making of Section 6.01 and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date any Term Advances in connection with respect to any Additional an increase in the Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in or any such new additional term loans under a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay new term loan facility, or any Revolving Credit Loans outstanding Advances made on the Additional Commitments Effective Date with respect to effective date of any Additional Revolving Credit such 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 involving an increase in the Revolving Credit Commitments. If there is a new Borrowing , and (v) receipt by the Increasing Lender or Additional Lender, as applicable, of Revolving Credit Commitments on all such fees as agreed to between such Increasing Lender and /or Additional Commitments Effective Date, Lender and 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)Borrower.
(c) Any other terms On any Increased Date on which there is a Commitment Increase in the Revolving Commitments pursuant to Section 2.17, (i) each of the Revolving Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and documentation entered into each of such Increasing Lender shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in respect the Revolving Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Advances will be held by existing Revolving Lenders and the Increasing Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of any Additional Term such Commitment Increase in the Revolving Commitments, (ii) each Commitment Increase in the Revolving Commitments shall be on terms deemed for all purposes a Revolving Commitment and pursuant each Revolving Advance made thereunder shall be deemed, for all purposes, a Revolving Advance and (iii) each Increasing Lender shall become a Revolving Lender with respect to documentation agreed between the Borrower Commitment Increase and all matters relating thereto. The Administrative Agent and the Lenders providing such Additional Term Commitments (including with respect to voluntary hereby agree that the minimum borrowing and mandatory prepayments), other than as contemplated by prepayment requirements in Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that 2.4 of this Agreement shall not apply 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 transactions effected pursuant to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory immediately preceding sentence. Notwithstanding any provision contained herein to the Administrative Agentcontrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the Revolving Advances shall take into account the actual Revolving Commitment of each Revolving Lender and the principal amount outstanding of each Revolving Advance made by such Lender during the relevant period of time.
(d) The Additional Commitments shall be documented by On such Increase Date if such Commitment Increase involves an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified increase in the definition aggregate Revolving Commitments, each Revolving Lender’s share of Additional the Letter of Credit Extension Amendment but no other existing Exposure and participations in respect of Swing Line Advances on such date shall automatically be deemed to equal such Lender), ’s Revolving Pro Rata Share of such Letter of Credit Obligations and the Additional Credit Extension Amendment may provide participations in respect of Swing Line Advances (such Revolving Pro Rata Share for such amendments Lender to this Agreement and the other Loan Documents be determined as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Increase Date in accordance with its Revolving Commitment on such date as a percentage of the Borrower, to effect the provisions of this Section 2.16aggregate Revolving Commitments on such date) without further action by any party.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may may, any time or from time to time after the Closing Date by written notice to the Administrative Agent elect to seek (x) commitments (an “Additional Revolving Credit CommitmentsIncremental Facility Request”) to increase request the Revolving Credit Commitments and/or establishment of incremental or additional term loan facilities (y) each, an “Incremental Term Facility”, the commitments (thereunder, the “Additional Incremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”) ). Any such Incremental Term Facility may be implemented by increasing the amount of loans and commitments under the existing Term Loan Facility or by adding a new term loan facility to increase this Agreement. Subject to the terms and conditions set forth in this Section 2.19, the Incremental Term Facilities shall be funded on the relevant Increased Amount Date; provided, that no Incremental Term Facility shall be incurred on such date to the extent that the aggregate principal amount of any existing Class such Incremental Term Facility when combined with the aggregate principal amount of all Incremental Term Loans or to establish one or more new Classes of Term Loans; provided that:
Facilities then outstanding exceeds (i) $150.0 million minus (ii) the aggregate commitments under any Revolving Credit Facility incurred pursuant Section 6.01(b) then in effect, plus (iii) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary any prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to made on or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Increased Amount Date pursuant to Section 2.09(a) (and any voluntary prepayments made in respect of an incremental term facility that is 18 months after the Amendment No. 1 Effective 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 secured on a pari passu basis points, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to permanent reductions in revolving commitments under 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (ivRevolving Credit Facility), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Incremental Facility Request shall specify (x) the date (each, an “Additional Commitments Effective Increased Amount Date”) on which the Borrower proposes that the Additional Incremental Term Commitments and the date the Incremental Term Loans shall be effectivemade available, which shall be a date reasonably acceptable not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the Persons (each of Incremental Term Commitments have been allocated, which allocation shall be made at the Borrower’s sole discretion. Any Lender approached to provide all or 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 Incremental Term Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Commitment (it being understood that the Borrower has no obligation to be provided by each approach any Lender, and no Lender is committing to provide any Incremental Term Commitment until such Person. time as such Lender agrees in writing to provide all or a portion of the Incremental Term Commitment).
(c) As a condition precedent to the effectiveness of any Additional CommitmentsIncreased Amount Date:
(i) no Default or Event of Default shall exist and be continuing or would immediately result from the incurrence of such Incremental Term Facility; provided, the Borrower shall deliver that solely with respect to the Administrative Agent any Incremental Term Facility incurred in connection with a certificate dated as Limited Condition Acquisition, no Default or Event 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 thereofDefault under Section 7.01(b), (c), (h) or (i) shall exist and be continuing at the time such Limited Condition Acquisition is consummated;
(ii) the incurrence of any such Incremental Term Facility shall be in compliance with all obligations under the Margin Regulations;
(iii) the representations and warranties of the Borrower contained in Article V and the III or any other Loan Documents are Document shall be true and correct in all material respects on (provided, that, solely with respect to any Incremental Term Facility incurred in connection with a Limited Condition Acquisition, only the Specified Representations (conformed as necessary for such transaction) shall be required to be true and as of the Additional Commitments Effective Datecorrect in all material respects) (provided, except that, to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been be true and correct in all material respects as of such earlier date; provided, further, that, any representation and except warranty that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a) is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be deemed true and correct (after giving effect to refer to any qualification therein) in all respects on such respective dates); provided, that, in connection with a Limited Condition Acquisition, Incremental Lenders providing any Incremental Term Loans and the most recent financial statements furnished pursuant to subsection Required Lenders may waive the conditions in this clause (aiii);
(iv) for any Incremental Term Facility that increases an existing tranche of Section 6.01 and (ii) no Default or Event the Loans, all terms thereof shall be on the same terms of Default exists. On each Additional Commitments Effective Date such existing tranche of Loans, including with respect to maturity date and interest rates but excluding, unless any Additional such difference in original issue discount or upfront fees would cause such Incremental Term CommitmentFacility to not be fungible with the Loans, each Person with an Additional Term Commitment shall make an Additional Term Loan original issue discount or upfront fees, and pursuant to the Borrower in a principal amount equal to same documentation (other than any amendment evidencing such Person’s Additional Incremental 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 Facility;
(and pay any additional amounts required pursuant to Section 3.05v) to the extent necessary to keep that such Incremental Term Loans are not made as part of 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 DateTerm Loan Facility, the Revolving Credit Lenders after giving effect terms and provisions of such Incremental Term Loans shall be consistent with the Term Loan Facility, provided, that:
(A) the interest rates applicable to such Additional Revolving Credit Commitments shall make such Revolving Credit Incremental Term 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 as agreed between the Borrower and the applicable Incremental Lenders providing such Additional Incremental Term Commitments Commitments;
(including with respect B) the final maturity date under any Incremental Term Facility shall not be earlier than the Final Maturity Date;
(C) the amortization requirements for any Incremental Term Facility shall be determined by the Borrower and the Incremental Lenders thereunder so long as the Weighted Average Life to voluntary and mandatory prepayments), Maturity applicable to any Incremental Term Facility shall be equal to or greater than the Weighted Average Life to Maturity of the Loans outstanding under the Term Loan Facility (without giving effect to any prepayments (other than as contemplated by Section 2.16(a)(iiiamortization));
(D) the Incremental Term Facility shall rank pari passu or junior in right of payment and/or of security with the Term Loan Facility or may be unsecured (and, (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms Incremental Term Facility is secured on a pari passu basis such Incremental Term Facility shall be subject to the Intercreditor Agreement 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)such Incremental Term Facility is subordinated in right of payment or security, (iv), (v), (vii), (viii) or (ix) above) they such Incremental Term Facility shall be subject to an intercreditor agreement the terms of which shall be reasonably satisfactory to the Administrative AgentAgent and the Borrower);
(E) the Incremental Term Facility shall not be (x) incurred or guaranteed by any Person who is not, or will not then be a guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the Loan Documents; provided, that to the extent such terms and provisions described in Section 2.19(c)(v)(A)-(E) of the Incremental Term Facility are not consistent with the Term Loan Facility, the terms and provisions shall be reasonably satisfactory to the Administrative Agent unless such terms are (x) added for the benefit of all Lenders pursuant to an Incremental Amendment (as defined below) or (y) are only applicable to periods after the maturity date of the Term Loan Facility;
(vi) if the All-In Yield applicable to any Incremental Term Loans under any Incremental Term Facility shall be greater than 0.50% per annum higher than the corresponding All-In Yield on the Term Loan Facility as of the date of incurrence, then the All-In Yield applicable to the Term Loan Facility shall be increased to cause the then applicable All-In Yield for the Term Loan Facility to equal the All-In Yield then applicable to the Incremental Term Loans minus 0.50% per annum (this provision, the “MFN Protection”); and
(vii) the terms of such Incremental Term Commitments shall be effected pursuant to an amendment to this Agreement (an “Incremental Amendment”) executed and delivered by the Borrower, the Administrative Agent and one or more Incremental Lenders; provided, that (x) such Incremental Term Loans may participate in any mandatory prepayment under Section 2.10 hereof on a pro rata basis (or on a basis less than pro rata), but not on a basis that is greater than pro rata, (y) with respect to terms not addressed by this Section 2.19(c), if such terms (other than pricing terms) of the Incremental Term Commitments are not, taken as a whole, substantially consistent with the terms of the Term Loan Facility, such terms shall not be more restrictive, when taken as a whole, than the terms of the Term Loan Facility (except for terms applying after the Term Loan Maturity Date or the Extended Maturity Date, as applicable) and (z) no voluntary prepayments may be made with respect to such Incremental Term Loans prior to the Final Maturity Date unless the Loans are repaid concurrently on at least a pro rata basis.
(d) The Additional Commitments On any Increased Amount Date on which any Incremental Term Commitment becomes effective or Incremental Term Loans are funded, subject to the foregoing terms and conditions, each Incremental Lender to the extent not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Commitment or Incremental Term Loan; provided, that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall be documented by an Additional Credit Extension Amendment executed by reasonably satisfactory to the Persons providing the Additional Commitments (Administrative Agent and the other Persons specified in Borrower to the definition extent consent would be required under Section 9.04(b) for an assignment of Additional Credit Extension Loans to such Incremental Lender.
(e) For purposes of this Agreement, any Incremental Term Loans shall be deemed to be Loans. Each Incremental Amendment but no other existing may, without the consent of any Lender), and the Additional Credit Extension Amendment may provide for effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.162.19.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may Company may, at any time after the Closing Date by written notice to the Administrative Agent elect to seek Agent, propose an increase in the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments hereunder (x) commitments (each such proposed increase being a “Additional Revolving Credit CommitmentsCommitment Increase”) either by having a Lender increase its Commitment of the applicable Class then in effect (each an “Increasing Lender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment of the applicable Class hereunder (each an “Assuming Lender”), in each case, with the approval of the Administrative Agent (not to be unreasonably withheld); provided that each Assuming Lender with a NAIC Tranche Commitment shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the Class of the Commitments which is being increased, (iii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iv) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (v) the Company’s election whether to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall be subject to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatfollowing additional conditions:
(i) unless the aggregate Administrative Agent otherwise agrees, the Commitment of any Assuming Lender as part of any Commitment Increase shall be in a minimum amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) at least $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)25,000,000;
(ii) any such increase or any new Class unless the Administrative Agent otherwise agrees, each Commitment Increase shall be in an aggregate amount of at least $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 limit set forth in the preceding clause (i)25,000,000;
(iii) immediately after giving effect to any Commitment Increase, the final maturity date of any Additional Term Loans total Commitments hereunder shall be no earlier than the Latest Maturity Datenot exceed $5,000,000,000;
(iv) no Default has occurred and is continuing on the Additional Term Loans relevant Commitment Increase Date or 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”);result from any Commitment Increase; and
(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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 of the Loan Parties set forth in Article V this Agreement and the other Loan Documents are shall be true and correct in all material respects (or, in the case of such representations and warranties qualified as to materiality, in all respects) on and as of the Additional Commitments Effective Date, except to the extent that such representations relevant Commitment Increase Date as if made on 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 (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). In connection with any Commitment Increase, the Company may, at its option, elect to ratably increase the Foreign Currency Sublimit Dollar Amount in proportion to the amount of such Commitment Increase (each such proposed increase being a “Foreign Currency Sublimit Increase”). Each Commitment Increase (and except that for purposes the increase of this Section 2.16(bthe applicable Commitment of each Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom), and if elected by the representations and warranties contained in Section 5.05(a) Company, the corresponding Foreign Currency Sublimit Increase, shall be deemed become effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on or prior to refer to the most recent financial statements furnished pursuant to subsection 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate of a Responsible Officer stating that the conditions with respect to such Commitment Increase under this Section 6.01 have been satisfied and (b) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its Commitment (or an increase of its applicable Commitment, as applicable), duly executed by each such Lender and the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender, together with such certificate of such Responsible Officer, the Administrative Agent shall record the information contained in such agreement in the Register and give prompt notice of the relevant Commitment Increase and if elected by the Company, the corresponding Foreign Currency Sublimit Increase, to the Company and the Lenders (including, if applicable, each Assuming Lender). On each Commitment Increase Date, if there are Loans of the applicable Class then outstanding, each applicable Borrower shall simultaneously (i) prepay in full the outstanding Loans of such Class made to such Borrower immediately prior to giving effect to the relevant Commitment Increase in accordance with Section 2.08 and (ii) no Default or Event at such Borrower’s option in accordance with this Agreement, such Borrower may request to borrow new Loans of Default exists. On each Additional Commitments Effective Date with respect to such Class from all the relevant Lenders (including, if applicable, any Additional Term CommitmentAssuming Lender) such that, 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 Dateafter giving effect thereto, the Revolving Credit Loans of such Class are held ratably by the relevant Lenders in accordance with their respective Commitments of such Class (after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(bCommitment Increase).
(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 2.16(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 . Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase any of its Commitments hereunder and any election to do so shall be in the sole discretion of such Lender.
Appears in 1 contract
Samples: Credit Agreement (American International Group Inc)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Agent, at any time after the Closing Date, each Borrower may request Additional Term Commitments or 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) 250,000,000 (the amount in this clause (A), the “General Incremental Dollar BasketAvailability”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with $750,000,000 (the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, “Ratio Incremental Availability”) to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to that in the case of this clause (CB) below), plus (C) additional amounts so long as only the Consolidated First Lien Senior Secured 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 Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments, as if applicable, shall not exceed 4.0:1.0 (it being agreed that (I) the Borrowers may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the Borrowers may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit CommitmentsLoans, as applicable and in either case applicable) originally designated to be incurred pursuant under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the Borrowers would be permitted to incur under this clause (CSection 2.14 the aggregate principal amount of such Indebtedness being so re-designated), 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $500,000 1,000,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) (A) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
Date for the Term Loans and (ivB) the final maturity date of any Additional Term Revolving Credit Loans shall have a Weighted Average Life to Maturity equal to or greater be no earlier than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (Date for the “Outstanding Term Revolving Credit Loans”);
(v) ; provided that the Applicable Rate amortization schedule with respect to any Additional Term Loans shall be determined by the BV Borrower and the lenders Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans; provided that , (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Loans incurred prior Commitments and/or Additional Revolving Credit Commitments that utilize the Ratio Incremental Availability, the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or, in the case of any Additional Term Commitments, a Eurodollar Rate floor greater than 1.00%, with such increased amount being equated to interest margin for purposes of determining any increase to the date that is 18 months after applicable interest margin under the Amendment No. 1 Effective Date, (xTerm Loan Facility) in the event that the Applicable Rate for applicable to 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 Commitments and/or Additional Revolving Credit Commitments will be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable determined by the Borrower to Borrowers and the lenders providing such Additional Term Loans or such Outstanding Term Loans Commitments and/or Additional Revolving Credit Commitments, but will not be more than 0.50% higher than the corresponding all-in the primary syndication thereof yield (with OID being equated after giving effect to interest based on an assumed four-year life to maturity) shall be included and rate margins (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds including the Eurodollar Rate “floor” ), original issue discount and upfront fees) for the corresponding existing Term Loan Facility or Base Rate “floor” applicable Revolving Credit Facility, respectively, unless the interest rate margins with respect to such existing Facility are increased by an amount equal to the Outstanding Term Loans, difference between the Eurodollar Rate “floor” or Base Rate applicable all-in yield with respect to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the such Additional Term Commitments shall be determined by the Borrower and/or Additional Revolving Credit Commitments and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu corresponding all-in right of payment and security with the yield on such 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 LoansFacility minus 0.50%.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the applicable Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) on and the final amount of such addition. The Administrative Agent shall promptly notify the applicable Borrower and the Lenders (which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date may include Persons reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person applicable Borrower 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 not Lenders prior to the Additional Commitments Effective Date) of the final amount of such addition and the portion of the Additional Commitment to be provided by each such PersonCommitments Effective Date. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the BV Borrower shall deliver to the Administrative Agent a certificate of the BV Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the BV Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (i) the representations and warranties contained in Article V 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 2.16(b2.14(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 subsection subsections (a) and (b), respectively, of Section 6.01 and (ii) no Default or Event of Default existsexists immediately before or immediately after giving effect to such addition. On each Additional Commitments Effective Date with respect to Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender”, as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the applicable 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, Term Loan shall be a “Term Loan” for all purposes of this Agreement and 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)other Loan Documents.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments shall be on terms and provided, in each case pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments)this Section 2.14, 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 or the extent permitted by Section 2.16(a)(iii)Revolving Credit Commitments, (iv)as the case may be, (v), (vii), (viii) or (ix) above) they 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) 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 2.14 shall supersede any provisions in Section 2.13 or Section 11.01 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Sensata Technologies Holding N.V.)
Increase in Commitments. (a) The Borrower Company may at any time, ----------------------- by written notice to the Administrative 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 Depositary Bank, propose that the aggregate principal amount of any existing Class the Commitments be increased in excess of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional the Commitments shall not exceed then in effect (a "Commitment Increase"), effective as of a date prior to the sum of Revolver Expiration Date (the "Increase Date") as to which agreement is to be reached by an earlier date specified in such notice (the "Commitment Date"); provided, however, that (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit minimum proposed Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class -------- ------- Increase per notice 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 no less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective Date5,000,000, (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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger no Event of Default has occurred and is continuing and (or its affiliatesC) the warranties of the Company in connection with the Additional Term Loans or Outstanding Term Loans Article VII 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 Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 with the same ------- --- effect as if made on such Increase Date. The Depositary Bank shall notify the Banks thereof promptly upon its receipt of any such notice. If agreement is reached on or prior to the Commitment Date with one or more Banks and Assuming Banks, if any, as to a Commitment Increase (which may be less than specified in the applicable notice from the Company), such agreement to be evidenced by a notice in reasonable detail from the Company to the Depositary Bank on or prior to the Commitment Date, the Assuming Banks, if any, shall become Banks hereunder as of the Additional Increase Date and the Commitments Effective Dateof such Banks and such Assuming Banks shall become or be, except as the case may be, as of the Increase Date the amounts specified in such notice (and the Depositary Bank shall give notice thereof to the extent that Banks (including such representations and warranties specifically refer to an earlier dateAssuming Banks)); provided, in which case they shall have been true and correct in all material respects as of such earlier datehowever, 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 that: -------- -------
(a) of Section 6.01 and the Depositary Bank shall have received (ii) no Default with copies for each Bank, including each Assuming Bank), on 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 prior to the Increase Date, an opinion of counsel for the Company in substantially the form of Exhibit D ------- - hereto and an opinion of counsel for each other Borrower substantially in the form of Exhibit F hereto, dated such Increase Date, together with a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding ------- - copy, certified on the Additional Commitments Effective Increase Date with respect to any Additional Revolving Credit by the Secretary or an Assistant Secretary of the pertinent Borrower, of the resolutions adopted by the Board of Directors of the Company and each such other Borrower authorizing such Commitment Increase;
(and pay any additional amounts required pursuant to Section 3.05b) each such Assuming Bank shall have delivered, on or prior 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 Increase Date, to 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).Depositary Bank an appropriate Assumption Agreement; and
(c) Any other terms of and documentation entered into each Bank which proposes to increase its Commitment in respect of any Additional Term Commitments connection with such Commitment Increase shall be have delivered, 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 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that prior to the extent such other terms and documentation Increase Date, confirmation 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 writing satisfactory to the Administrative Agent.
(d) The Additional Commitments Depositary Bank as to its increased Commitment. In the event that the Depositary Bank shall be documented not have received notice from the Company as to such agreement on or prior to the Commitment Date or the Company shall, by an Additional Credit Extension Amendment executed by notice to the Persons providing Depositary Bank prior to the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)Increase Date, and the Additional Credit Extension Amendment may provide for withdraw such amendments to this Agreement and the other Loan Documents as may be necessary proposal or appropriate, in the reasonable opinion any of the Administrative Agent and the Borrower, to effect the provisions actions provided for above in clauses (a) through --- (c) of this Section 2.16.
(e) This Section 2.16 1.1.8. shall supersede any provisions in Section 2.13 or Section 11.01 to not have occurred by the contrary.Increase Date, such --- ------- ------ -5-
Appears in 1 contract
Increase in Commitments. (aA) The Borrower may At any time after the Closing Date, Administrative Agent may, from time to time at the request of Borrower, increase the Total Commitment by written notice (i) admitting additional Lenders hereunder (each a SUBSEQUENT LENDER), or (ii) increasing the Commitment of any Lender (each an INCREASING LENDER), subject to the Administrative 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatfollowing conditions:
(iI) the aggregate amount each Subsequent Lender is a Lender, an Affiliate of all Additional Commitments shall not exceed the sum of a Lender or an Approved Fund;
(II) Borrower executes (A) after a new Revolving Credit Note payable to the Amendment No. 1 Effective Dateorder of a Subsequent Lender, or (B) a replacement Revolving Credit Note payable to the order of an Increasing Lender;
(III) each Subsequent Lender executes and delivers to Administrative Agent a Joinder Agreement in the form of EXHIBIT F;
(IV) each Increasing Lender executes and delivers to Administrative Agent an increase certificate substantially in the form of EXHIBIT G;
(V) after giving effect to the incurrence admission of any Subsequent Lender or the 2016 Incremental Term B Loans and increase in the 2016 Incremental Revolving Credit Commitment Increaseof any Increasing Lender, (x) the Total Commitment does not exceed $75,000,000 100,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment any previous reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)SECTION 2.3;
(iiVI) any such each increase or any new Class in the Total Commitment shall be in an aggregate the amount of $10,000,000 or any whole a greater integral 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 limit set forth in the preceding clause (i)5,000,000;
(iiiVII) the final maturity date no admission of any Additional Term Loans Subsequent Lender shall be no earlier than increase the Latest Maturity DateCommitment of any existing Lender without the written consent of such Lender;
(ivVIII) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to no Event of Default or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior Potential Default exists or would occur after giving effect to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”)increase;
(vIX) no Lender shall be an Increasing Lender without the written consent of such Lender;
(X) the Applicable Rate with respect to any Additional Term Loans shall be determined by the Borrower and the lenders amount 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 Amendment No. 1 Effective Date, (x) all increases 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 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 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 Total Commitment pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which SECTION 2.7 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 not exceed $50,000,000 in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the sameaggregate;
(viXI) no existing Lender Borrower shall be required have (a) pledged to provide any Additional Commitments;
Administrative Agent, for the benefit of Lenders, a first priority Lien and security interest in one or more additional Collateral Properties to which all Lenders, in their sole discretion, have consented and (viib) subject delivered to clause (iv), Administrative Agent each of the amortization schedule applicable items listed in SECTION 7.1(C) related to the Additional Term Commitments shall be determined by the Borrower such Collateral Properties and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing Loansapplicable Subsidiary that holds title to such Collateral Properties, all acceptable to Required Lenders; and
(ixXII) 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 pledge of one or more additional Collateral Properties as required in CLAUSE (and assuming full utilization thereof), (iXI) 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)above, 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 ratio of (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 Total 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 the increase requested pursuant to this SECTION 2.7) to (b) the aggregate Appraised Value of all Collateral Properties as of the date of such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(brequest is less than or equal to seventy percent (70%).
(cB) Any other terms of and documentation entered into in respect After the admission of any Additional Term Commitments Subsequent Lender or the increase in the Commitment of any Increasing Lender, Administrative Agent shall promptly provide to each Lender and to Borrower a new SCHEDULE 2.1 to this Agreement. In the event that there are any Borrowings outstanding after giving effect to an increase in the Total Commitment pursuant to this SECTION 2.7, upon notice from Administrative Agent to each Lender, the amount of such Borrowings owing to each Lender shall be on terms appropriately adjusted to reflect the new Applicable Percentage of Lenders, and Borrower shall pay any losses associated therewith 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 2.16(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 AgentSECTION 4.5.
(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 1 contract
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (A) after in the Amendment No. 1 Effective Date, and after giving effect to the incurrence case of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause Clause (A), on and after the Tenth Amendment Effective Date, the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Dollar BasketAvailability”), 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, additional amounts to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to that in the case of this clause (CB) below), plus (C) additional amounts so long as only the Consolidated First Lien Senior Secured 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 Test Period for which financial statements are internally available, as if after giving Pro Forma Effect to any such Additional Term Loans Commitments or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause Commitments (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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 calculated 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 were fully drawn on the applicable test date), as applicable, shall make such Revolving Credit Loans in accordance not exceed, on the date of the closing date 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 thereto or, if the Borrower and has made an LCT Election with respect thereto, on the Lenders providing LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the Borrower may designate any such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than Additional Revolving Credit Commitments as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that being incurred pursuant to the extent such other terms General Incremental Availability or Ratio Incremental Availability in this sole discretion, and documentation (II) so long as the all-in respect of any Additional Term Loans are yield did not consistent with those of the Term B Loans (except require a change to the extent permitted by Section 2.16(a)(iiiinterest rate margins pursuant to clause (vi), (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 1 contract
Samples: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) The At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase request the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatestablishment of:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of one or more incremental term loan commitments (A) after the Amendment No. 1 Effective Dateany such incremental term loan commitment, and after giving effect to the incurrence of the 2016 an “Incremental Term B Loans and Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the 2016 Revolving Commitments (any such increase, an “Incremental Revolving Credit Commitment IncreaseCommitment” and, (x) $75,000,000 less (y) together with the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A)Term Loan Commitments, the “Incremental Dollar BasketLoan Commitments”)) to make additional revolving credit loans under this Agreement (any such increase, plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of an “Incremental Revolving Credit Commitments prior to or simultaneous Increase” and, together with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Incremental Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C)Loans, the “Incremental Ratio ExceptionLoans ”);
; provided that (ii1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any such increase or any new Class date of incurrence thereof) exceed $250,000,00050,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increased Amount Date”) on which the Borrower proposes that the Additional Commitments any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably acceptable satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and (y) the identity of the Persons (each of which Lenders 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 have received from the Borrower proposes would provide the Additional Commitments a Pro Forma Compliance Certificate demonstrating, in form and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver substance reasonably satisfactory to the Administrative Agent a certificate dated as of Agent, that (1) the Additional Commitments Effective Date signed by a Responsible Officer of Consolidated Total Leverage Ratio is less than or equal to 4.50 to 1.00 and (2) the Borrower certifying thatis in compliance with the financial covenantsAsset Coverage Ratio set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable,7.10, both before and after giving effect (on a pro forma basis) to the Additional Commitments (and assuming full utilization thereof)x) any Incremental Loan Commitment, (iy) the representations making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and warranties contained (z) any Permitted Acquisition consummated in Article V and the other Loan Documents are true and correct in all material respects on and as connection therewith;
(C) each 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) 6 shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 true and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitmentcorrect in all material respects, 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 2.16(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 any such representation and warranty is qualified by Section 2.16(a)(iiimateriality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), (iv)such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, (v)the Incremental Lenders making such Incremental Term Loan and the Borrower, (vii)but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, (viii) or (ix) above) they all other terms and conditions applicable to any Incremental Term Loan 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.;
(eG) This Section 2.16 in the case of each Incremental Revolving Credit Increase (the terms of which shall supersede any provisions be set forth in Section 2.13 or Section 11.01 to the contrary.a Lender joinder agreement):
Appears in 1 contract
Samples: Credit Agreement (Cree, Inc.)
Increase in Commitments. (a) The Borrower may by written notice at any time or from time to time on one or more occasions request (i) prior to the Administrative Agent elect Revolving Termination Date, an increase to seek (x) commitments the existing Revolving Commitments under one or more of the Revolving Facilities (“Additional Increased Revolving Credit CommitmentsCommitment”) to increase or (ii) the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes of term loan Commitments (each, an “Incremental Term LoansLoan Commitment”; provided that:
it being understood that the Increase Joinder will set forth whether such Incremental Term Loan Commitment is (ix) the aggregate amount of all Additional Commitments a commitment to make term loans with terms identical to (and that shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental together with any then outstanding Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (xform a single Class of) $75,000,000 less Term B Loans or (y) a commitment to make term loans with pricing, maturity, amortization, participation in mandatory prepayments or other terms different from the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less Term B Loans (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 term loans incurred pursuant to this clause (Cy), available the “Other Incremental Term Loans”)) in an amount not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the Incremental Amount) individually and in an amount not to exceed the Incremental Amount at the time such Additional Incremental Term Loans are funded or Increased Revolving Commitments had been outstanding are established, in each case, determined on the last day of applicable date on which the new or increased Commitments shall become effective (each such perioddate, an “Increase Effective Date”), and, in each case (x) case, with respect to any Additional Increased Revolving Credit Commitment incurred pursuant to this clause (C)Commitments, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds of any such Incremental Term Loans or Increased Revolving Commitments; provided that (I) for the avoidance of doubt, any Incremental Term Loans or Increased Revolving Commitments incurred or issued pursuant to the Ratio-Based Incremental Amount on any Increase Effective Date on which the Total Net Leverage Ratio, Secured Net Leverage Ratio or First Lien Net Leverage Ratio, as applicable, is met shall remain authorized pursuant to this clause if such Total Net Leverage Ratio, Secured Net Leverage Ratio or First Lien Net Leverage Ratio, as applicable, test is not met as of any subsequent date and (II) each Increased Revolving Commitment or Incremental Term Loan Commitment under this Section 2.24 shall be incurred under the Ratio-Based Incremental Amount if and to the extent that the Ratio-Based Incremental Amount is available at the time of such incurrence up to the maximum amount available, any additional amounts incurred at any time that the Ratio-Based Incremental Amount is unavailable shall be incurred under the Fixed Incremental Amount or the Prepayment-Based Incremental Amount, and in the event that any amounts incurred under the Fixed Incremental Amount or the Prepayment-Based Incremental Amount subsequently meet the criteria for amounts incurred under the Ratio-Based Incremental Amount, such amounts shall automatically be reclassified as amounts incurred under the Ratio-Based Incremental Amount unless the Borrower, in its sole discretion, elects otherwise, and the Fixed Incremental Amount or the Prepayment-Based Incremental Amount, as applicable, shall be deemed to be restored by the amount so reclassified, and (III) any simultaneous incurrence under the Fixed Incremental Amount or the Prepayment-Based Incremental Amount shall not be given pro forma effect for purposes of determining the Total Net Leverage Ratio, Secured Net Leverage Ratio or First Lien Net Leverage Ratio, as applicable, with respect to any incurrence under the Ratio-Based Incremental Amount; provided, further, that:
(i) the condition set forth in Section 5.2(iii) shall be satisfied; provided that, unless otherwise agreed by the Borrower, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Transaction, this clause (i) shall be subject to customary “SunGard” or other applicable “certain funds” conditionality limitations and “specified representations” provisions;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date (provided that, to the extent the proceeds of any Incremental Term Loans or Increased Revolving Commitments are being used to finance a Limited Condition Transaction, the condition in this clause (ii) may be tested in accordance with Section 1.6);
(iii) [reserved];
(iv) no existing Lender will be required to participate in any such increased or new Commitments without its consent;
(v) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(c); and
(vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the applicable Administrative Agent in connection with any such Additional Commitmentstransaction.
(b) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) any commitments to make additional Term B Loans shall have the same terms as the Term B Loans, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), shall form part of the “Incremental Ratio Exception”)same Class of Term B Loans;
(ii) any such increase Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) with the Term B Loans in any new Class mandatory prepayment hereunder,
(iii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in an aggregate amount respect of $10,000,000 any Incremental Term Loan Commitments,
(iv) Other Incremental Term Loans shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral;
(v) except for the terms referred to in this Section 2.24(b), to the extent the terms of any whole multiple Incremental Term Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts, amortization schedule and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent in any material respect with the Term B Loans as in effect on the date of $500,000 in excess thereof; provided that incurrence of such amount may Incremental Term Loans, such differences shall be less than $10,000,000 if reasonably acceptable to the Term Loan Facility Administrative Agent (except for terms benefitting the Lenders of such amount represents Incremental Term Loans (x) where such beneficial terms are incorporated into this Agreement and the other Loan Documents for the benefit of all remaining availability under Lenders without further amendment requirements, including, for the limit set forth avoidance of doubt, at the option of the Borrower, any increase in the preceding clause applicable interest rate margin related to the Term B Loan Facility to bring such applicable interest rate margin in line with the Other Incremental Term Loans to achieve fungibility with the Term Loan B Facility or (iy) applicable only to periods after the Latest Maturity Date in effect as of the date of incurrence of such Incremental Term Loans);
(iiivi) Other Incremental Term Loans that are secured shall rank equally and ratably in right of security with the final maturity date Term B Loans or, at the option of any Additional the Borrower, shall rank junior in right of security with the Term B Loans (provided that, if such Other Incremental Term Loans rank junior in right of security with the Term B Loans, such Other Incremental Term Loans shall be no earlier than subject to the Latest provisions of a (x) a First Lien Intercreditor Agreement if such Debt is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations or (y) a Junior Lien Intercreditor Agreement if such Debt is secured by the Collateral on a second priority (or other junior priority) basis to the liens securing the Obligations;
(vii) all terms and provisions (including the Maturity Date) of Revolving Loans made pursuant to new Commitments shall be identical to the existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(ivviii) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of all Incremental Term Loans outstanding prior shall be no shorter than the Weighted Average Life to such proposed incurrence Maturity of Additional Term Loans (the “Outstanding existing Term Loans”);
(vix) the Applicable Rate maturity date of all Incremental Term Loans shall not be earlier than the latest Maturity Date with respect to any Additional the Term Loans as then in effect; and
(x) the Weighted Average Yield for the new Incremental Term Loans shall be determined by the Borrower and the lenders of the Additional Term Loansapplicable new Lenders; provided that that, with respect to any Additional Dollar-denominated Incremental Term Loans incurred prior to the date that is 18 six (6) months after the Amendment No. 1 Effective Date, (x) in the event Closing Date that the Applicable Rate for any such Additional Term Loans is greater than the Applicable Rate for are pari passu with the Term B Loans by more in right of payment and with respect to security (other than 50 basis points(a) term loan A facilities, (b) Debt incurred in the form of a bridge or other interim credit facility intended to be extended, renewed or refinanced with long-term Debt (and such bridge or other interim credit facility shall be deemed to satisfy clauses (viii) and (ix) above so long as (x) such credit facility includes customary “rollover” provisions that are subject to no conditions precedent other than (I) the occurrence of the date specified for the “rollover” and (II) no payment or bankruptcy event of default having occurred and being continuing and (y) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clauses (viii) and (ix) above), (c) any Incremental Term Loan incurred to finance an Investment permitted pursuant to Section 7.6, (d) any Incremental Term Loan with a final maturity date that is later than twelve (12) months after the then applicable Term B Loan Maturity Date and (e) Incremental Term Loans incurred after the Closing Date in an aggregate principal amount up to the greater of (x) $83,750,000 and (y) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently completed Measurement Period), the Weighted Average Yield with respect to such Incremental Term Loans, determined as of the date of incurrence of such Incremental Term Loans, shall not be greater than the Weighted Average Yield with respect to the Term B Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield with respect to the Term B Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins or floors with respect thereto pursuant to this clause (x)), plus 0.50%, or if it does so exceed such Weighted Average Yield (such difference, the “Yield Differential”), then the Applicable Margin (or the Eurodollar Rate for “floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the extent necessary so Yield Differential shall not exceed 0.50%; provided that any increase in the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for Weighted Average Yield with respect to 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower due to the lenders providing such Additional Term Loans application of a LIBOR Screen Rate or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable ABR floor to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Other Incremental Term Loans shall be excluded, and (y) if any Eurodollar effected solely through an increase to the extent of such differential between the LIBOR Screen Rate “floor” or Base Rate “floor” applicable ABR floor to any Additional the Other Incremental Term Loans exceeds and the Eurodollar LIBOR Screen Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate ABR floor applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv)Loans, the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower but only if and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 an increase in 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 floor 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 2.16(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 would cause an increase in the extent permitted interest rate then in effect with respect thereto. In lieu of adding Incremental Term Loan Commitments, Borrower may at its option utilize all or any portion of the Incremental Amount capacity at any time by issuing or incurring Permitted Incremental Equivalent Debt in a manner consistent with Section 2.16(a)(iii2.24(a), (iv), (v), (vii), (viii) . The increased or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional new Commitments shall be documented effected by an Additional Credit Extension Amendment executed by Increase Joinder that may, without the Persons providing the Additional Commitments (and the consent of any other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)Lenders, and the Additional Credit Extension Amendment may provide for effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.24. In the event any Incremental Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Extended Term Loans or Refinancing Term Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for U.S. federal income tax purposes), such Incremental Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Extended Term Loans or Refinancing Term Loans, and the amortization set forth in Section 2.3 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Incremental Term Loans.
(c) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment under the applicable Revolving Facility prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender that is acquiring a new or additional Revolving Commitment under the applicable Revolving Facility on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at par, such interests in the Revolving Loans under the applicable Revolving Facility (which purchases shall be deemed prepayments of such Revolving Loans for purposes of Section 2.20) and participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans under the applicable Revolving Facility and participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments under the applicable Revolving Facility after giving effect to such Increased Revolving Commitments under the applicable Revolving Facility.
(d) On any Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(e) This The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 2.16 10 and security interests created by the Security Documents. The Loan Parties shall supersede take any provisions in Section 2.13 actions reasonably required by the Administrative Agents to ensure or Section 11.01 demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the contraryestablishment of any such Class of Term Loans or any such new Commitments.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Administrative Agent elect Lenders and the Eligible Financial Institutions), Borrowers may, prior to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the earlier of the Revolving Credit Commitments and/or (y) commitments (“Additional Maturity Date and the Term Commitments”) Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate principal amount of (any existing Class of such increase in the Term Loans or to establish one or more new Classes of Loan Amount, an "Incremental Term Loans; Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the aggregate amount final maturity date of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 any Incremental Term B Loans and Loan shall be no earlier than the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”)Loan Maturity Date;
(ii) any such the Revolving Credit Maturity Date shall not be modified by the 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; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i)Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
interest rate margins and, subject to clause (ivi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate above, amortization with respect to any Additional Incremental Term Loans Loan, for any Incremental Loan shall be determined by the Borrower Borrowers and the lenders of the Additional Term Loans; Lenders under such Incremental Loan provided that with if the interest rate margin in respect to of any Additional Term Loans incurred prior to the date that is 18 months after the Amendment No. 1 Effective Date, (x) in the event that Incremental Loan exceeds the Applicable Rate for any such Additional Term Loans is greater than the Applicable Rate Margin for the Term B Loans by more than 50 basis pointsLoan or the Revolving Loans, as applicable, then the Applicable Rate Margin for the Term B Loans shall be 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 Applicable Rate for the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans Loan or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Revolving Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans as applicable, shall be increased so that the applicable “floor” interest rate margin in respect of such loan is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable equal to the Additional Term Commitments shall be determined by interest rate margin for the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing LoansIncremental Loan; and
(ixiv) except as otherwise provided in this Section 2.3, the Additional terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms Loan, or Revolving Loan, as may be agreed between applicable, or as otherwise reasonably satisfactory to the Borrower Agent 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 LoansBorrower.
(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 from Borrowers pursuant 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)2.3 shall set forth the requested amount and, the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant subject to subsection (a) of this Section 6.01 2.3, proposed terms of the Incremental Loan, and (iiin consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no Default or Event event be less than fifteen (15) Business Days from the date 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 delivery of such notice to the Borrower in a principal Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At 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 Datetime, 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)2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Any other terms of Incremental Term Loans shall become Term Loans under this Agreement, and documentation entered into in respect of any Additional Term Commitments Incremental Revolving Loans shall be on terms and become Revolving Loans under this Agreement pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments an amendment (including with respect an "Incremental Loan Amendment") to voluntary and mandatory prepayments)this Agreement and, other than as contemplated by Section 2.16(a)(iii)appropriate, (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 Transaction Documents. Subject to Section 13.2, the definition Incremental Loan Amendment may, without the consent of Additional Credit Extension Amendment but no other existing Lender)Lenders, and the Additional Credit Extension Amendment may provide for effect such amendments to this Agreement and the other Loan Transaction 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 2.162.3.
(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: Revolving Credit and Term Loan Agreement (Air Methods Corp)
Increase in Commitments. (a) The Borrower may by may, with the written notice to consent of the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to which consent shall not be unreasonably withheld or delayed), increase the aggregate amount of the Revolving Credit Commitments and/or by delivering a Commitment Amount Increase Request at least five (y5) commitments Business Days prior to the desired effective date of such increase (the “Additional Term CommitmentsCommitment Amount Increase”) to increase identifying an additional Lender (or additional Revolving Credit Commitments for existing Lender(s)) and the aggregate principal amount of any existing Class its Revolving Credit Commitment (or additional amount of Term Loans or to establish one or more new Classes of Term Loansits Revolving Credit Commitment(s)); provided that:
provided, however, that (i) any increase of the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with an amount in excess of $200,000,000 will require the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 approval 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 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 thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class of the aggregate amount of the Revolving Credit Commitments 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 not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity 10,000,000. The effective date of any Additional Term Loans the Commitment Amount Increase shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional Term Loans shall be determined agreed upon by the Borrower and the lenders of Administrative Agent. Upon the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to effectiveness thereof, the date that is 18 months after the Amendment No. 1 Effective Datenew Lender(s) (or, (xif applicable, existing Lender(s)) 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 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 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), (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 advance Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so amount sufficient such that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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), its Loans each Bank shall have outstanding its pro rata share of Loans. It shall be a condition to such effectiveness that (i) either no Eurodollar Loans be outstanding on 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 date of such earlier date, and except that for purposes effectiveness or the Borrower pays any applicable breakage cost under Section 1.11 hereof incurred by any Lender resulting from the repayment 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 its Loans 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 shall not have terminated any portion of the Revolving Credit Commitments pursuant to such Person’s Additional Term CommitmentSection 1.14 hereof. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect agrees 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 2.16(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 expenses of the Administrative Agent and the Borrower, relating 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 Commitment Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Increase in Commitments. (a) The Borrower Borrowers may by written notice to the Administrative 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 at any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) time after the Amendment No. 1 Effective Date, and after giving effect by notice to the incurrence Administrative Agent, request the addition of one or more additional tranches of Term Loans (each, an “Incremental Term Facility”) or an increase in the Revolving Credit Facility (each, a “Revolving Facility Increase” and, together with the Incremental Term Facilities, an “Incremental Facility”) pursuant to additional commitments (the “Incremental Commitments”) to be effective as of a date (the “Increase Date”) as specified in the related Incremental Amendment; provided, however, that (i) in no event shall the aggregate amount of all of the 2016 Incremental Term B Loans and Commitments, taken together with any Additional Debt incurred pursuant to Section 7.03(b)(xxii), exceed the 2016 Incremental Revolving Credit Commitment Increase, greater of (x) $75,000,000 less 500,000,000 and (y) the an additional aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less such that, after giving pro forma effect to the establishment or incurrence, as the case may be, of all such Incremental Commitments (z) which shall be deemed to include the aggregate principal full amount of Incremental Notes incurred under Section 7.02(v)(A) (any Revolving Facility Increase assuming the full amount in this clause (Aof such increase has been drawn), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Secured Leverage Ratio and shall not be greater than 2.00:1.00 (or, in the Consolidated Net Leverage Ratiocase of any Incremental Commitments the proceeds of which shall be used to finance all or any portion of a Permitted Acquisition, 2.50:1.00), determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters quarter for which financial statements are internally availableinformation was most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b); provided that the aggregate Incremental Commitments, as if taken together with any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case Debt incurred pursuant to this clause (CSection 7.03(b)(xxii), 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 shall not exceed 3.75:1.00 and 6.50:1.00$1,000,000,000, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any each new Class Incremental Facility 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 not less than $10,000,000 if such amount represents 25,000,000, (iii) other than with respect to any Incremental Commitments the proceeds of which shall be used to finance all remaining availability under or any portion of the limit consideration for a Permitted Acquisition, each of the conditions set forth in Section 4.02 shall be satisfied after giving effect to the preceding establishment of such Incremental Commitments, (iv) after giving pro forma effect to the establishment or incurrence, as the case may be, of such Incremental Commitments (which shall be deemed to include the full amount of any Revolving Facility Increase assuming the full amount of such increase has been drawn), as of the Increase Date, the Borrower Parties shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on a Pro Forma Basis as of the last day of the fiscal quarter for which financial information was most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b), (v) (A) except as provided in clause (iB);
(iii) , the final maturity date of any Additional such Incremental Term Loans shall be no earlier than the Latest Maturity Date;
(iv) Date of the Additional Term B Loans shall have a and the Weighted Average Life to Maturity equal to or greater of such Incremental Term Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term B Loans (the “Outstanding other than Term B-4 and Term B-5 Loans”);
) and (vB) the Applicable Rate with respect to any Additional Incremental Term Loans shall be determined in an aggregate principal amount not to exceed (x) $250,000,000, plus (y) an additional aggregate principal amount equal to the aggregate principal amount of Term A Loans repaid or prepaid (other than any such Term A Loans prepaid or repaid with the proceeds of Indebtedness) 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 Borrowers after the Amendment No. 1 Effective Date, but in any event the additional amount in this clause (xy) not to exceed $250,000,000, the maturity date of such Incremental Term Loans shall be no earlier than the Latest Maturity Date of the Term A Loans and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the longest Weighted Average Life to Maturity of the Term A Loans, (vi) in the event case of an Incremental Revolving Increase, the Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vii) the interest rate margins and floors, fees, discounts, premiums and (subject to clause (v)) amortization schedule applicable to any Incremental Term Loans shall be determined by the applicable Borrower and the lenders thereunder; provided that the Applicable Rate for interest rate margins with respect to any such Additional Incremental Term Loans is shall not be greater than the Applicable Rate for interest rate margin with respect to each of the then outstanding Term B Loans plus 0.50% per annum unless the interest rate margin applicable to each of the then outstanding Term B Loans is increased so that the interest rate margin applicable to the Incremental Term Loans does not exceed the interest rate margin applicable to any outstanding Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be increased to the extent necessary so 0.50% per annum; provided that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect interest rate margin applicable to Additional Term Loans or the applicable Class of Outstanding Term Loans loans and/or commitments incurred pursuant to this clause (v)each Incremental Term Loan and each applicable Term B Loan, (Ax) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the applicable Borrower to the lenders providing such Additional Lenders of the applicable Term B Loans or such Outstanding the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and ), (By) customary arrangement arrangement, structuring or other commitment fees payable to any lead arranger the Lead Arrangers or Amendment No. 1 Lead Arrangers (or its affiliatestheir respective Affiliates) in connection with the Additional applicable Term B Loans or Outstanding to one or more arrangers in connection with such Incremental Term Loans shall be excluded, excluded and (yz) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional the Incremental Term Loans exceeds include an interest rate floor greater than the Eurodollar Rate “floor” or Base Rate “floor” applicable to interest rate floor under the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans), such differential between interest rate floors shall be equated to the applicable interest rate margin solely for purposes of determining whether the interest rate margin of such Incremental Term Loans is higher than the interest rate margin under the applicable Term B Loans by more than 0.50% and to the extent the difference in the interest rate floors would cause the interest rate margins of such Incremental Term Loans to be higher than the interest rate margins for the applicable Term B Loans by more than 0.50%, the interest rate floor (but not in any event the interest rate margin) applicable to each of the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans) shall be increased so to the extent of such differential between interest rate floors; provided, further, that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
for purposes of this clause (vii) subject to clause (iv), the amortization schedule applicable to the Term B-1 Loans, Term B-2 Loans, Term B-3 Loans and Additional Term Commitments B-1 Loans shall be determined by the Borrower and the lenders thereof;
deemed to have been issued at par, (viii) the Additional Term Loans any Incremental Facility 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 Facilities on 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 satisfactory to the Administrative Agent and (y) the identity none of the Persons (each Incremental Facilities shall have the benefit of which shall be a Person that would be an Eligible Assignee (any Guarantee or any Lien or other security except for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide Guaranty and Liens under the Additional Commitments and Loan Documents for the portion benefit 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 dateObligations, 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 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) aboveany Incremental Term Loans may have other terms and conditions determined by the Borrowers and the lenders thereunder; provided that to the extent such other terms and documentation in respect of any Additional Term Loans conditions are not consistent with those of the Term B Loans Loans, as the case may be (except to the extent permitted by Section 2.16(a)(iii), (iv), clause (v), (vii), (viii) or (ixvii) above) ), they shall be reasonably satisfactory to the Administrative Agent.
(db) The Additional Commitments Each notice from the Borrowers pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Facility Increase, as applicable. Incremental Term Loans and Revolving Facility Increases may be made by any existing Lender (it being understood that no existing Lender will have a right or obligation to make a portion of any Incremental Term Loan or Revolving Facility Increase) or by any other Eligible Assignee that agrees to make an Incremental Term Loan or Revolving Facility Increase; provided that, to the extent the Administrative Agent’s consent would be required for an assignment to such Eligible Assignee pursuant to Section 10.07, each such Eligible Assignee shall be documented by subject to the approval of the Administrative Agent and, if such Eligible Assignee will provide any Revolving Facility Increase, the L/C Issuers and Swing Line Lender (such approval in each case not to be unreasonably withheld or delayed) and the Borrower, as applicable (any such other Eligible Assignee being called an “Additional Credit Extension Amendment Lender”). Commitments in respect of Incremental Term Loans and Revolving Facility Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Persons providing Parent Guarantor, the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), if any, and the Additional Credit Extension Administrative Agent. The Incremental Amendment may provide for may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section 2.16.
Section. The effectiveness of (eand, in the case of any Incremental Amendment for an Incremental Term Loan or a Revolving Facility Increase, the borrowing thereunder) This Section 2.16 any Incremental Amendment shall supersede any provisions be subject to the satisfaction on the Increase Date of each of (x) the conditions set forth in Section 2.13 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 11.01 4.02 shall be deemed to refer to the contraryeffective date of such Incremental Amendment) and (y) such other conditions as the parties thereto shall agree; provided, however, clause (x) shall not apply to the effectiveness of an Incremental Amendment establishing Incremental Commitments the proceeds of which shall be used to finance all or any portion of the consideration for a Permitted Acquisition. The Borrower will use the proceeds of Incremental Term Loans and borrowings under any Revolving Facility Increase for any purpose not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) The Borrower Request for Increase. In addition to any Additional Letter of Credit Facilities pursuant to Section 2.03(o), the Company may from time to time, request by written notice to the Administrative Agent elect to seek (x) commitments (“Additional an increase in the Multicurrency Revolving Credit CommitmentsCommitment or the US Dollar Revolving Credit Commitment (each, a “Revolving Credit Increase”) to increase the Revolving Credit Commitments and/or or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of term loan tranches, including any increase to an existing term loan tranche (each, an “Incremental Term LoansLoan”; each Incremental Term Loan and each Revolving Credit Increase, collectively, referred to as the “Incremental Increases”); provided that:
that (i) the principal amount for all such Incremental Increases in the aggregate amount of all Additional Commitments since the Second Amendment Effective Date (including the then requested Incremental Increase) shall not exceed $1,000,000,000 unless the sum of (A) after the Amendment No. 1 Effective Date, pro forma Consolidated Leverage Ratio immediately before and after giving effect to the incurrence of applicable Incremental Increase (calculated by assuming that the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Facility, including any such Revolving Credit Increase, (xis fully drawn at such time) $75,000,000 is less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior than 2.75 to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
1.00; (ii) any such increase or any new Class request for an Incremental Increase shall be in an aggregate a minimum amount of $10,000,000 100,000,000 (or any whole multiple of $500,000 a lesser amount in excess thereof; provided that such amount may be less than $10,000,000 if the event such amount represents all remaining availability under the limit set forth in the preceding clause (ithis Section);
; (iii) no Revolving Credit Increase shall (A) increase any L/C Issuer’s Fronting Exposure without the final maturity date consent of any Additional such L/C Issuer, (B) increase the Swing Line Sublimit without the consent of the Swing Line Lender, (C) increase the Foreign Borrower Sublimit or the Alternative Currency Sublimit without the consent of the Required Revolving Lenders or (D) increase the Alternative Currency Loan Sublimit without the consent of the Required Multicurrency Revolving Lenders; (iv) no Incremental Term Loans Loan shall be no mature earlier than the Latest Maturity Date;
(iv) Date for the Additional Term Loans shall Facility or have a Weighted Average Life weighted average life to Maturity equal to or greater maturity shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
Facility; and (v) the Applicable Rate with respect to any Additional Term Loans each Incremental Increase shall constitute Obligations hereunder and 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 guaranteed pursuant to the date that is 18 months after the Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 LoansGuaranties.
(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 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 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 1 contract
Samples: Credit Agreement (Urs Corp /New/)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to seek (x) commitments (“Additional Revolving Credit Commitments”) each of the Lenders), request that the total Commitments be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase sum of the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional total Commitments shall not exceed $150,000,000 minus any amount by which the sum Commitments shall have been reduced pursuant to Section 2.09. Such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (A) which shall be not less than 10 Business Days or more than 60 days after the Amendment Nodate of such notice), and shall offer each Lender the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. 1 Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Borrower’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment). In the event that, on the 10th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and each Issuing Bank (which approvals shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any increase in the total Commitments may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to this Section 2.20 (the “Commitment Increase”), if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans of the Types and for the Interest Periods specified in a Borrowing Request delivered pursuant to Section 2.03, which Revolving Loans shall be made by the Lenders (including the Increasing Lenders and the Augmenting Lenders, if any) ratably in accordance with their respective Commitments (calculated after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained . The payments made pursuant to clause (Ci) below), plus (C) additional amounts so long as above in respect of each Eurodollar Loan shall be subject to indemnification by the Consolidated First Lien Net Leverage Ratio and Borrower pursuant to the Consolidated Net Leverage Ratio, determined provisions of Section 2.16 if the Increase Effective Date occurs other than 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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)Interest Period relating thereto.
(c) Any other terms of Increases and documentation entered into in respect of any Additional Term new Commitments shall be on terms and created pursuant to documentation agreed between this Section 2.20 shall become effective on the date specified in the notice delivered by the Borrower and pursuant to the Lenders providing such Additional Term Commitments first sentence of paragraph (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ixa) above; provided that to the extent such other terms and documentation in respect of any Additional Term Loans are not consistent Borrower may, with those the consent of the Term B Loans Administrative Agent (except such consent not to the extent permitted by Section 2.16(a)(iiibe unreasonably withheld), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory extend such date by up to 30 days by delivering written notice to the Administrative AgentAgent no less than three Business Days prior to the date specified in the notice delivered by the Borrower pursuant to the first sentence of paragraph (a) above.
(d) The Additional Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) or addition of an Augmenting Lender shall become effective under this Section unless, (i) on the date of such increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (satisfied 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 shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, to effect and (ii) the provisions Administrative Agent shall have received (with sufficient copies for each of this the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 2.164.01.
(e) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice request (in writing) Incremental Commitments in an aggregate amount not to exceed, in the aggregate, $750,000,000 (minus the aggregate principal amount of all Indebtedness issued pursuant to Section 8.2(p) on or prior to the Administrative Agent elect date of such request, but not to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase be reduced by the aggregate principal amount of any existing Class such Incremental Term Loans, or Indebtedness issued pursuant to Section 8.2(p), the proceeds of which are applied to the refinancing of all or any portion of the Tranche B Term Loans), in increments of (x) no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time with respect to Incremental Term Loans and (y) no less than $5,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to establish this Section 2.4 is less than $5,000,000) at any one time with respect to Incremental Revolving Loans, from one or more new Classes Incremental Lenders (approved by the Administrative Agent if such Incremental Lender is not already a Revolving Lender and is to be a Revolving Lender after the effective date of the applicable Incremental Commitment Agreement) willing to provide such Incremental Commitments. Requests for such Incremental Commitments may be, at the Borrower’s option, for Incremental Revolving Loans (at any time prior to the later of the (i) Revolving Termination Date and (ii) the latest Extended Revolving Termination Date, if any) and/or Incremental Term Loans; provided that:
. In the event the Borrower shall request Incremental Term Loans, such request shall set forth (i) the aggregate amount of all Additional Commitments the Incremental Term Loans being requested, (ii) the date on which such Incremental Term Loans are requested to be made, (iii) any requested differences between the Incremental Term Loans and the existing Tranche B-2 Term Loans (which shall not exceed be effective until set forth in an executed Incremental Commitment Agreement executed by the sum of Group Members and each applicable Incremental Lender), provided, that in any event (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Additional all Incremental Term Loans shall be determined by no shorter than the Borrower and the lenders Weighted Average Life to Maturity of the Additional Term Loans; provided that with respect to any Additional Tranche B-2 Term Loans incurred prior to at the date that is 18 months after time of the Amendment No. 1 Effective Dateborrowing of such Incremental Term Loan, and (xB) in the event that the Applicable Rate for Maturity Date of any such Additional Incremental 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 increased to no shorter than the extent necessary so that final maturity of the Applicable Rate for the Additional Tranche B-2 Term Loans, and (iv) whether such Incremental Term Loans is not more than 50 basis points higher than are to have the Applicable Rate for same yield (taking into account the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect interest rate margin and after giving effect to Additional Term Loans all upfront fees or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) similar fees on original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower as to the lenders providing such Additional Tranche B-1 Term Loans or whether such Outstanding Incremental Term Loans in are to have a different yield than the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Tranche B-1 Term Loans or Outstanding (“Other Term Loans”); provided, that, if the yield in respect of any Other Term Loan exceeds the yield for the Tranche B-1 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 Applicable Margin for the Outstanding Tranche B-1 Term Loans, and, if applicable, the Eurodollar Rate “floor” or Base Rate applicable to the Tranche B-2 Term B Loans Loans, shall be increased so that the yield in respect of such Other Term Loans (giving effect to any upfront or similar fees or OID issued in connection with such Other Term Loans) is no higher than the yield for the Tranche B-1 Term Loans. All Incremental Term Loans (including Other Term Loans) shall otherwise be made on substantially identical terms as the Tranche B-2 Term Loans, except as set forth in any applicable “floor” is Incremental Commitment Agreement, and, in the same;
(vi) no existing case of Other Term Loans, with respect to the interest rate margin applicable thereto. No Agent or Lender shall be required obligated to provide deliver or fund any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Incremental Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on may borrow under the Additional Incremental Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to only five times during 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 2.16(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 term of this Section 2.16Agreement.
(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: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek request (x) commitments (“Additional Revolving Credit Commitments”) prior to increase the Revolving Credit Termination Date, an increase to the existing Revolving Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes term loan Commitments in addition to the Tranche B-1 Term Commitments established on the Restatement Effective Date (each, an “Incremental Term Loan Commitment”) by an amount not in excess of Term Loans; provided that:
(i) $750,000,000 in the aggregate amount (for both of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, clauses (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 and not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No100,000,000 individually. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 (xi) the date (each, an “Additional Commitments Increase Effective Date”) on which the Borrower proposes that the Additional increased or new Commitments shall be effective, which shall be a date reasonably acceptable not fewer than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (yii) 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)) to whom the Borrower proposes would provide the Additional any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment.
(b) The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:
(i) each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be provided by each such Person. As a condition precedent made on the Increase Effective Date;
(iii) after giving pro forma effect to the effectiveness borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated acquisition permitted by this Agreement concurrently with such borrowings as of the Additional Commitments Effective Date signed by a Responsible Officer date 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 delivered pursuant to subsection Section 6.1(b) or (ac), the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) 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 the Borrower 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 payments required pursuant to Section 3.052.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(c) The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments (“Incremental Term Loans”) shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Tranche B-1 Term Loans (it being understood that Incremental Term Loans may be part of an existing tranche of Term Loans);
(ii) all terms and provisions (including maturity date) of Revolving Loans made pursuant to new Commitments shall be identical to the existing Revolving Loans;
(iii) the weighted average life to maturity of all new term loans under Incremental Term Loan Commitments shall be no shorter than the weighted average life to maturity of the existing Tranche B-1 Term Loans;
(iv) the maturity date of Incremental Term Loans shall not be earlier than the Tranche B-1 Term Loan Maturity Date; and
(v) the Applicable Margins for the new term loans under Incremental Term Loan Commitments shall be determined by Borrower and the applicable new Lenders; provided, however, that the Applicable Margins for the new term loans under Incremental Term Loan Commitments shall not be greater than the highest Applicable Margins that may, under any circumstances, be payable with respect to Tranche B-1 Term Loans plus 50 basis points (and the Applicable Margins applicable to the Tranche B-1 Term Loans shall be increased to the extent necessary to keep achieve the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitmentsforegoing). If there is a The increased or 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 effected by a joinder agreement (the “Increase Joinder”) executed by Borrower, the Administrative Agent and pursuant each Lender making such increased or new Commitment, in form and substance satisfactory to documentation agreed between each of them. The Increase Joinder may, without the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect consent 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)other Lenders, (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 effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.24.
(d) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to such increased Revolving Commitments.
(e) This Section 2.16 shall supersede On any provisions in Section 2.13 or Section 11.01 Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the contrarysatisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(f) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 10 hereof and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such class of Term Loans or any such new Commitments.
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent at any time after the Closing Date, on one or more occasions, up to three in the aggregate, elect to seek (xA) increase the commitments with respect to the existing Revolving Commitments (any such increase, the “Additional Incremental Revolving Credit Commitments”) from one or more Incremental Revolving Lenders (which may or may not include any existing Lender (each of which may be entitled to increase agree or decline to participate in its sole discretion if so offered the Revolving Credit Commitments opportunity to do so)) and/or (yB) commitments incur Incremental Term Loan Commitments from one or more Incremental Term Lenders (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) (the Incremental Term Loan Commitments, together with the Incremental Revolving Commitments, the “Additional Term Incremental Commitments”) to increase the ), in an aggregate principal amount of any existing Class of Term Loans or all Incremental Commitments not to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (xi) $75,000,000 less 125,000,000 plus (yii) an unlimited amount, so long as, in the aggregate principal amount case of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Aii), after giving pro forma effect to such Incremental Revolving Commitments or the “Borrowing of such Incremental Dollar Basket”), plus Term Loan and the application of proceeds therefrom (B) assuming all voluntary prepayments of such Incremental Revolving Commitments and all such Incremental 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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Loan Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio fully drawn 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 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 without “netting” the cash proceeds of any Loans pursuant Incremental Revolving Commitments or Incremental Term Loans, and after giving pro forma effect to such Additional Commitmentsany Permitted Acquisition, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (CInvestment or other transaction consummated in connection therewith), the “Senior Secured Leverage Ratio shall not exceed 3.25:1.00; provided, that each Incremental Ratio Exception”Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed);
. Such notice shall set forth (i) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000) and (ii) any the date on which such increase Incremental Revolving Commitments or any new Class Incremental Term Loan Commitments are requested to become effective (which 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 not be less than $10,000,000 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent).
(b) The Borrower may seek Incremental Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such amount represents all remaining availability under other documentation as the limit set forth in Administrative Agent shall reasonably specify to evidence the preceding clause Incremental Commitment of such Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided, that, (x) the terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments and (y) with respect to Incremental Term Loans, without the prior written consent of the Required Lenders, (i);
(iii) the final maturity date of any Additional Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
Date or, if a previous tranche of Incremental Term Loans was issued (iva “Previous Incremental Term Loan Tranche”), then no earlier than the latest maturity date of any Previous Incremental Term Loan Tranche and (ii) the Additional Term Loans shall have a Weighted Average Life weighted average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Incremental Term Loans shall be determined by no shorter than the Borrower and the lenders remaining weighted average life to maturity 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 Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Previous Incremental Term Loans is greater than the Applicable Rate for the Term B Loans by more than 50 basis pointsLoan Tranche, then the Applicable Rate for the Term B Loans shall be 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Incremental Term Loans or exceeds by more than 0.50% the applicable Class sum of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount the margin then in effect for Term Loans that are Term SOFR Loans plus (B) one-quarter of the amount of such upfront fee paid on any Previous Incremental Term Loan Tranche in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “OIDYield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) or upfront or similar fees the margin above the Adjusted Term SOFR Rate on such Incremental Term Loans (which shall be deemed to constitute like amounts of OID) payable increased by the Borrower amount any “Floor” applicable to the lenders providing such Additional Incremental Term Loans or on the date such Outstanding Incremental Term Loans in are made exceeds the primary syndication thereof Adjusted Term SOFR Rate) plus (with OID being equated to interest based on y) if the Lenders making such Incremental Term Loans receive an assumed four-year upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity) shall be included maturity of such Incremental Term Loans and (B) customary arrangement or commitment fees payable four. The other terms of the Incremental Term Loans and the Incremental Loan Assumption Agreement to any lead arranger (or its affiliates) in connection the extent not consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate terms applicable to the Term B Loans hereunder shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 Term B Loans (except to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall otherwise be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments ; and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Incremental Term Loans, the existing Lenders shall be documented entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Incremental Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by an Additional Credit Extension Amendment executed by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the Persons providing part of any Person effective as of the Additional Commitments date of such Incremental Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Commitment and/or Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of 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 Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect effectuate the provisions of this Section 2.162.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the Revolving Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Revolving Commitment or Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date.
(e) This Both immediately before and immediately after giving effect to any Incremental Revolving Commitments or Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.16 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Loans, and (ii) the representations and warranties shall supersede be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any provisions Incremental Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Term SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not a Previous Incremental Term Loan Tranche, the scheduled amortization payments set forth in Section 2.13 or Section 11.01 2.12(b) required to be made after the contrarymaking of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect from time to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the time, request Incremental Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) Other Revolving Credit Commitments in an aggregate amount not to increase exceed the aggregate principal amount of any existing Class of Term Loans or to establish Incremental Revolving Credit Amount from one or more new Classes Incremental Lenders, which may include any existing Lender (each of Term Loanswhich shall be entitled to agree or decline to participate in its sole discretion); provided that:
that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the aggregate amount of all Additional the Incremental Revolving Credit Commitments or Other Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Revolving Credit Amount), (ii) the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than 10 Business Days nor more than 60 days after the Amendment No. 1 Effective Datedate of such notice, unless otherwise agreed to by the Agent) and after giving effect (iii) whether the Borrower is requesting Incremental Revolving Credit Commitments or commitments to make revolving loans with terms different from the Revolving Loans (“Other Revolving Loans”).
(b) The Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the incurrence approval of the 2016 Agent (which approval shall not be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental Term B Loans Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the 2016 Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) or the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Other Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C)applicable, 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 Incremental Lender. Each Incremental Revolving Credit Commitment incurred pursuant to this clause (C), assuming a borrowing Assumption Agreement shall specify the terms of the maximum amount of Incremental Revolving Loans available or Other Revolving Loans to be made thereunder, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents that, without the prior written consent of all remaining availability under the limit set forth in the preceding clause (i);
(iii) Lenders, the final maturity date of any Additional Term Other Revolving Loans shall be no earlier than the Latest Revolving Credit Maturity Date;.
(ivc) the Additional Term The Applicable Rate with respect to any Incremental Revolving Loans shall have a Weighted Average Life to Maturity equal to or greater than be the then remaining Weighted Average Life to Maturity of each Class of Term same as the Applicable Rate for the existing Revolving Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) and the Applicable Rate with respect to any Additional Term Other Revolving Loans shall not 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 Amendment No. 1 Effective 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 existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans by more than 50 basis points, then may be increased (but may not be decreased) to equal the Applicable Rate for such Incremental Revolving Loans or such Other Revolving Loans to satisfy the Term B requirements of this paragraph (c). The other terms of any Incremental Revolving Loans shall be increased the same as the terms of the other Revolving Loans. The other terms of any Other Revolving Loans and the Incremental Revolving Credit Assumption Agreement in respect thereof, to the extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” terms applicable to the Outstanding Term LoansRevolving Loans hereunder, the Eurodollar Rate “floor” or Base Rate applicable shall otherwise be reasonably satisfactory to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv)Agent and, the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations and or warranties specifically refer or other rights or provisions that place greater restrictions on the Borrower or are more favorable to an earlier datethe Lenders making such Other Revolving Loans, in which case they the existing Lenders shall have been true and correct in all material respects as be entitled to the benefit of such earlier date, rights and except that for purposes of this Section 2.16(b), the representations provisions so long as such Other Revolving Loans remain outstanding and warranties contained in Section 5.05(a) such additional rights and provisions shall be deemed to refer automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Revolving Credit Assumption Agreement. The Agent shall promptly notify each Lender as to the most recent financial statements furnished pursuant to subsection (a) effectiveness 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 Incremental Revolving Credit Loans outstanding on Assumption Agreement. Each of the Additional Commitments Effective Date with respect to parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to keep reflect the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in existence and terms of the Revolving Credit Commitments. If there is a new Borrowing of Incremental Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional or Other Revolving Credit Commitments shall make evidenced thereby as provided for in Section 9.02. Any such Revolving Credit Loans deemed amendment may be memorialized in accordance writing by the Agent with Section 2.01(b).
the Borrower’s consent (cnot to be unreasonably withheld) 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 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that furnished 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 Agentparties hereto.
(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.
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Increase in Commitments. (a%3) The Borrower may by written After the Closing Date, upon notice to the Administrative Agent elect Agent, the Borrower may request increases to seek the U.S. Revolving Commitments (x) commitments each such increase, the “Additional U.S. Revolving Commitments”), increases to the Multicurrency Revolving Commitments (each such increase, the “Additional Multicurrency Revolving Commitments” and, together with the Additional U.S. Revolving Commitments, the “Additional Revolving Credit Commitments”) ), increases to any existing Term NY\6127033.17 Loan Facility or one or more new tranches of term loans, including Additional Term A Loans, denominated in either Dollars or Euros (each such increase and/or new tranche, the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans); provided that:
(i) after giving effect to any such addition, the aggregate amount of all Additional Revolving Commitments, Additional Term Commitments and Additional Notes that have been added pursuant to this Section 2.14 shall not exceed the sum of (A) after $500,000,000, plus (B) the Amendment No. 1 Effective Date, amount of Delayed Draw Commitments that have been cancelled without the funding of Delayed Draw Term Loans thereunder plus (C) the amount of all voluntary prepayments and after giving effect voluntary commitment reductions of the Facilities prior to the date of any such incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause amounts available pursuant to clauses (A) through (C), the “General Incremental Dollar BasketAvailability”), plus (BD) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with unlimited additional amounts (the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, “Ratio Incremental Availability”) to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to that, in the case of this clause (CD) below)only, 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 Test Period 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 available after giving Pro Forma Effect to this clause (C), available under such Additional Commitments had been outstanding on the last day Incurrence 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 Term Commitments, do Additional Revolving Commitments and/or Additional Notes, as applicable, and any Investment consummated with the proceeds therefrom, (x) if the Additional Revolving Loans, Additional Term Loans and/or Additional Notes are secured on a pari passu basis with the Facilities, the First Lien Leverage Ratio does not exceed 3.75:1.00 and 6.50:1.001.50:1.00 or (y) if such Additional Revolving Commitments, respectively (this clause (C)Additional Term Commitments and/or Additional Notes are unsecured or secured on a junior lien basis to the Facilities, the “Total Leverage Ratio does not exceed 3.50:1.00 (but assuming for the purpose of each such calculation that (x) the relevant Additional Revolving Commitments shall be treated as fully drawn, (y) the cash proceeds of Additional Revolving Loans, Additional Term Loans and/or Additional Notes, as applicable, are not treated as Cash On Hand for such purpose and (z) the proceeds of any Additional Loans or Additional Notes that are to be used to repay Indebtedness have been so used to prepay such Indebtedness) and, in each case, after giving effect to any determination that the Borrower may make to designate any such Additional Revolving Commitments, Additional Term Commitments and/or Additional Notes as being Incurred pursuant to the General Incremental Availability or Ratio Exception”)Incremental Availability in its sole discretion;
(ii) no existing Lender will be required to participate in any such increase Additional Facility or any new Class 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 limit set forth in the preceding clause (i)Additional Notes without its consent;
(iii) any such Additional Facility shall, except as otherwise provided in clause (vi)(C) below, be secured on a pari passu basis by the same Collateral securing the Facilities;
(iv) (x) all Additional U.S. Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the U.S. Revolving Facility (other than with respect to any upfront fees) and (y) all Additional Multicurrency Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the Multicurrency Revolving Facility (other than with respect to any upfront fees); and NY\6127033.17 (v) the final maturity date of any Additional Term Loans (other than Additional Term A Loans) shall be no earlier than the Latest Maturity Date;
(iv) Date for the Additional existing Term Loans shall have a Weighted Average Life to Maturity equal to or greater than Loans, the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of any Additional Term Loans (other than Additional Term A Loans) shall be no shorter than the “Outstanding Weighted Average Life to Maturity for the existing Term Loans”);
(v) , and the Applicable Rate with respect to terms of any Additional Term Loans shall be determined by the Borrower and the lenders of the such Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to the date that is 18 months after the Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 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 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 1 contract
Samples: Credit Agreement (W R Grace & Co)
Increase in Commitments. (a) The TheA Borrower may by written notice to the Administrative 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 existing Class of Term Loans or to establish add one or more new Classes of incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that:
that the (i1) the total aggregate amount for all such Incremental Facilities (assuming, for the purposes of all Additional Commitments determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the $150,000,000the sum of (A) after $200,000,000 and (B) an amount such that at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect thereto on a pro forma basis the Senior Secured Leverage Ratio is less than or equal to the incurrence of the 2016 Incremental Term B Loans 2.75 to 1.00 and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y2) the total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) $25,000,000 or, if less, the aggregate principal remaining amount of Incremental Notes incurred under Section 7.02(v)(A) (permitted pursuant to the amount in this foregoing clause (A1), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the thesuch Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the thesuch Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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 1 contract
Increase in Commitments. (ai) The Borrower may may, from time to time, request by written notice to the Administrative Agent elect to seek an increase in the aggregate Revolving Loan Commitments (x) commitments (each, a “Additional Revolving Credit Commitments”Increase"); provided that (A) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate original principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments such Revolving Credit Increases incurred hereunder shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus 50,000,000; (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of any such request for an Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class Increase shall be in an aggregate a minimum amount of $10,000,000 5,000,000 (or any whole multiple of $500,000 a lesser amount in excess thereof; provided that such amount may be less than $10,000,000 if the event such amount represents all remaining availability under the limit set forth in the preceding clause this Section); (i);
(iiiC) the final maturity date of any Additional Term Loans no Revolving Credit Increase shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective Date, (x) in increase the event that L/C Sublimit without the Applicable Rate for any such Additional Term Loans is greater than consent of 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 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 Applicable Rate for the Term B Loans ; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans L/C Issuers or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds increase the Eurodollar Rate “floor” or Base Rate “floor” applicable to Swing Line Maximum Amount without the Outstanding Term Loans, consent of the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans Swing Line Lender; (D) each Revolving Credit Increase shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower an Obligation and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and and/or security with the existing Loansother Advances; andand (E) the terms and conditions of each Revolving Credit Increase, including interest rates and fees, shall be the same as the Revolving Loan Commitments.
(ixii) Fifth Third shall be offered the Additional Term Loans opportunity to arrange the amount of any Revolving Credit Increase and Revolving Credit Increases may have optional prepayment be (but shall not be required to be) provided by any existing Lender, in each case on terms (including call protection and prepayment premiumspermitted in this Section 2.1(c) and mandatory prepayment otherwise on terms as may be agreed between reasonably acceptable to the Borrower and the lenders of the Agent, or by any Additional Term Loans so long as such Additional Term Loans do not participate on Lender pursuant to a greater than pro rata basis joinder agreement 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 form and substance reasonably acceptable satisfactory to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person Agent; provided 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 Agent shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to each proposed Additional Lender providing such Revolving Credit Increase and warranties contained in Article V (ii) the L/C Issuers 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 Swing Line Lender shall have been true consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to each such Lender or proposed Additional Lender providing such Revolving Credit Increase. No Lender shall have any obligation to increase its Commitments hereunder or participate in any Revolving Credit Increase (and correct in all material respects as of such earlier date, and except any existing Lender that fails to respond to any request for purposes of this Section 2.16(b), an increase or an incremental loan within the representations and warranties contained in Section 5.05(a) requested time shall be deemed to refer have declined to provide any such increase or incremental loan), and no consent of any Lender, other than the most recent financial statements furnished pursuant Lenders agreeing to subsection (a) provide any portion 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 Increase, shall be required 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 effectuate such Revolving Credit Loans in accordance with Section 2.01(b)Increase.
(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 2.16(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 1 contract
Samples: Credit Agreement (Greenbacker Renewable Energy Co LLC)
Increase in Commitments. (a) The Borrower may by written notice Provided that no Default or Event of Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.10 and with the approval of Administrative Agent elect Agent, Borrowers shall have the option, at any time and from time to seek (x) commitments (“Additional Revolving Credit Commitments”) time, before the Maturity Date to request the increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and Total Real Estate Revolving Loan Commitment or the 2016 Incremental increase of the Total A/R Revolving Credit Loan Commitment (each, a “Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of not to exceed $10,000,000 or any whole multiple of 140,000,000.00100,000,000.00 (such that the Total Commitment shall not exceed $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause 500,000,000.00), by giving written notice to Administrative Agent (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the each, an “Outstanding Term LoansIncrease Notice”);
(v) the Applicable Rate with respect to any Additional Term Loans shall be determined by the Borrower and the lenders , each 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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the Borrower proposes Borrowers propose that the Additional Commitments applicable Commitment Increase shall be effective, which shall be a date reasonably acceptable not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent, and the Commitment to be increased; provided that any such individual increase of the Real Estate Revolving Loan Commitment or the A/R Revolving Loan Commitment must be in a minimum amount of $5,000,000.00 and increments of $5,000,000.00 in excess thereof unless otherwise approved by Administrative Agent in its sole discretion. Upon receipt of any Increase Notice, Administrative Agent shall consult with KeyBanc and shall notify Parent of the amount of the facility fees to be paid to any Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide a portion of the Commitment Increase pursuant to such Increase Notice in connection with such increase in the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be (which shall be in addition to the fees to be paid to Administrative Agent and KeyBanc pursuant to the Administrative Agent Fee Letter). If Borrowers agree to pay the facility fees so determined, Administrative Agent shall send a notice to all Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be (each, a “Commitment Increase Request Notice”), informing them of Borrowers’ request to increase the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, and (y) the identity of the Persons (each facility fees to be paid with respect thereto. Each Real Estate Revolving 65 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 Loan Lender or A/R Revolving Loan Lender, as the case may be, who desires to provide a portion of which the Commitment Increase upon such terms shall be provide Administrative Agent with 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 written commitment letter specifying the portion of the Additional Commitment Increase which it is willing to provide prior to such deadline as may be specified in the Commitment Increase Request Notice. If the requested increase is oversubscribed, Administrative Agent and KeyBanc shall allocate the Commitment Increase among the Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide such commitment letters on such basis as Administrative Agent and KeyBanc shall determine in their sole discretion. If the increases to the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, so provided are not sufficient to provide the full amount of the Commitment Increase requested by Borrowers, then Administrative Agent, KeyBanc or Borrowers may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Administrative Agent, KeyBanc and Parent) to become a Real Estate Revolving Loan Lender or an A/R Revolving Loan Lenders, as the case may be, and provide a portion of the Commitment Increase. Administrative Agent shall provide all Lenders with a notice setting forth the amount, if any, of the Commitment Increase to be provided by each such PersonReal Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, and the revised Real Estate Revolving Loan Commitment Percentages or A/R Revolving Loan Commitment Percentages, as the case may be, which shall be applicable after the Increase Effective Date. As a condition precedent In no event shall any Lender be obligated to increase its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be.
(b) The terms and provisions of the Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to the effectiveness Commitment Increases shall be as follows:
(i) terms and provisions of any Additional Commitments, the Borrower shall deliver Loans made pursuant to the Administrative Agent a certificate dated Commitment Increases shall be identical to the existing Real Estate Revolving Loans or A/R Revolving Loans, as the case may be (except as otherwise set forth in Section 2.10(a) with respect to the facility fees paid in connection therewith), it being understood that the Loans made pursuant to the Commitment Increases will be, for all intents and purposes, Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, and all references in the Loan Documents to Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to the Commitment Increases that are Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to this Agreement; and (ii) the maturity date of Real Estate Revolving Loans or A/R Revolving Loans, as the Additional Commitments case may be, shall be the Maturity Date.
(c) Upon each Increase Effective Date signed by a Responsible Officer of each increase in the Borrower certifying thatTotal Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, before and after giving effect as the case may be, pursuant to the Additional Commitments (and assuming full utilization thereof)this Section 2.10, (i) the representations applicable Commitment Increase shall be effected by a joinder agreement (the “Increase Joinder”) executed by Borrowers, Guarantors, Administrative Agent and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as each Lender making a portion of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier dateCommitment Increase, in which case they shall have been true form 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 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 Term B Loans (except to the extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be substance 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 each of Additional Credit Extension Amendment but no other existing Lender)them, and the Additional Credit Extension Amendment may provide for Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.10, (ii) Administrative Agent may unilaterally revise Schedule 1.1
(a) to reflect the name and address, Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be, and Real Estate Revolving Loan Commitment Percentage or A/R Revolving Loan Commitment Percentage, as the case may be, of each Lender following such increase and (iii) Borrowers shall execute and deliver to Administrative Agent a new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, for each Real Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, whose Real Estate 66 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be, has changed so that the principal amount of such Real Estate Revolving Loan Lender’s or A/R Revolving Loan Lender’s, as the case may be, Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall equal its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be. Administrative Agent shall deliver such replacement Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, to the respective Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, in exchange for the Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, replaced thereby which shall be surrendered by such Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be. Each such new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall provide that it is a replacement for the applicable surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, and that it does not constitute a novation, shall be dated as of the applicable Increase Effective Date and shall otherwise be in substantially the form of the replaced Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be. Concurrently with the issuance of any new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, pursuant to this Section 2.10(c), Borrowers shall deliver an opinion of counsel, addressed to the Lenders and Administrative Agent, relating to the due authorization, execution and delivery of such new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, and the enforceability thereof, in form and substance substantially similar to the opinion delivered in connection with the first disbursement under this Agreement. The surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall be canceled and returned to Borrowers.
(ed) This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 Notwithstanding anything to the contrary.contrary contained herein, Borrowers may not request any Commitment Increase unless the following conditions precedent are satisfied prior to the effectiveness of thereof, which conditions cannot be waived without the consent of all of the Lenders: (i)
Appears in 1 contract
Samples: Senior Secured Credit Agreement (American Healthcare REIT, Inc.)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments and/or (y) commitments (each, a “Additional Term CommitmentsCommitment Increase”) pursuant to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term LoansCommitment Increase and Joinder Agreement; provided that:
(i) that after giving effect to any such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (i) $375,000,000, (ii) (A) after in the Amendment No. 1 Effective Datecase of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness) and (iv) an amount not in excess of an amount such that, after giving effect to the incurrence relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.50:1.00; provided that for purposes of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior calculating such First Lien Indebtedness incurred Leverage Ratio or Senior Secured Leverage Ratio under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Aiv), (1) the “Incremental Dollar Basket”), plus proceeds from any such Commitment Increase shall not be netted from Indebtedness and (B2) all voluntary prepayments of Term Loans and voluntary commitment reductions of the Revolving Credit Commitments prior shall be assumed to be fully drawn. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments any portion of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (Civ) 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 clause (C), available under such Additional Commitments had been outstanding a) on the last day applicable date of determination, such period, and, Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in each case reliance on clause (xiv) with respect to any Additional Revolving Credit Commitment incurred pursuant to of this clause (C), assuming a borrowing of a) prior to the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds utilization of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this amount available under clause (Ci) of this clause(a), the “Incremental Ratio Exception”. Each such addition under this Section 2.16(a);
(ii) any such increase or any new Class . 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.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans shall be no earlier than on the Latest Maturity Date;
(iv) the date of incurrence of such Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than and (B) 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 Loan Tranche 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 Amendment No. 1 Effective Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater no less than the Applicable Rate for the Weighted Average Life to Maturity of such latest maturing Tranche of Term B Loans by more than 50 basis points, then the Applicable Rate for the Term B Loans shall be 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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.
(bc) Each Any such notice shall specify additional Revolving Credit Commitments (xthe “Additional Revolving Credit Commitments”) may be made by increasing the date Revolving Credit Commitments with the same terms (including pricing) as any existing Revolving Credit Commitments of the latest maturing Tranche of Revolving Credit Commitments.
(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 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 Commitments Effective Date”) on which and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower proposes that and the lenders providing such Commitment Increase of the final allocation thereof and 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 PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatsuch addition, before and after giving effect to the Additional Commitments (and assuming full utilization thereof)such increase, (i) (A) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the 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 (B) no Event of Default exists before or after giving effect to such addition; provided that for purposes 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)(B) and (B) of this Section 2.16(b), the representations 2.16(e) may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions 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 “specified representations” provisions and (ii) no Default 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 or Event Section 6.01(b) or in any subsequent delivery of Default exists. financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn 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 with respect to any Additional Term CommitmentDate, (i) each Person with Lender or Eligible Assignee which is providing an Additional 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 Person’s additional Term Commitment, and such Additional Term Commitment. The Borrower Loan shall prepay any 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 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 outstanding on will be determined by the Borrower and the lenders providing such Additional Commitments Effective Date Term Loans; provided that with respect to any Additional Revolving Credit Commitment (Increase in respect of the Term B Facility that is pari passu with the existing Term B Facility in right of payment and pay any additional amounts required pursuant with respect to Section 3.05) security incurred in the first 18 months after the Closing Date for which the initial ”yield” on such Commitment Increase exceeds the “yield” at such time on the Term B Facility by more than 50 basis points, the Applicable Margin on the Term B Facility shall be increased to the extent necessary so that the “yield” applicable to keep the outstanding Revolving Credit Loans ratable Term B Facility is equal to the “yield” on such Commitment Increase minus 50 basis point (the “MFN Provision”). For purposes of the MFN Provision, “yield” shall be reasonably determined by the Administrative Agent and the Borrower; provided that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with such Commitment Increase or the existing Term B Facility (based on a four-year average life to maturity or, if lesser, remaining average life to maturity) shall be included, (x) any amendments to the Applicable Margin on the existing Term B Facility that became effective subsequent to the Closing Date but prior to the time of the addition of such Commitment Increase shall be included, (y) arrangement, structuring, underwriting fees and amendment fees paid or payable in connection with the existing Term B Facility or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Commitment Increase (regardless of whether such fees are paid to or shared in whole or in part with any revised Applicable Revolving Credit Percentages arising from lender) and any nonratable increase other fees not paid generally to all lenders ratably shall be excluded and (z) if such Commitment Increase includes any “LIBOR” interest rate floor greater than that applicable to the existing Term B Facility and such floor is applicable to existing Term B Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase. The MFN Provision shall also apply to any loan issuance otherwise permitted in Section 7.03(h)(x), 7.03(z) and 7.03(aa) that is pari passu in right of payment with the Revolving Credit Commitments. If there is Term B Facility and secured by a new Borrowing of Revolving Credit Commitments Lien 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 Collateral on a pari passu basis with Section 2.01(b)the Liens securing the Term B Facility.
(ch) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall Loans may rank pari passu or junior with respect to security with the Facilities (and if applicable, subject to an Acceptable Intercreditor Agreement) and will not be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to voluntary and mandatory prepaymentsmargin, pricing, maturity and/or fees), 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 Loan Tranche, if not substantially consistent with those the terms of the applicable Term B Loans (except to the extent permitted by Section 2.16(a)(iii)Facility, (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are acceptable to the Administrative Agent).
(dj) The Additional Commitments shall proceeds of any Commitment Increase may be documented by an Additional Credit Extension Amendment executed used by the Persons providing Borrower and its Subsidiaries for working capital and other general corporate purposes, including the Additional Commitments (financing of permitted acquisitions and the other Persons specified in the definition of Additional Credit Extension Amendment but no Investments and any other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to use not prohibited by 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 2.16Agreement.
(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: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”; the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities (assuming, in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed (x) commitments $60,000,000 (“Additional plus, to the extent utilized to effect an Incremental Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or Increase, $20,000,000), plus (y) commitments (“Additional Term Commitments”) an amount equal to increase the aggregate principal amount sum of any existing Class all voluntary prepayments of Term Loans or made pursuant to establish one or more new Classes of Term Loans; provided that:
Section 2.09(a), plus (iz) the aggregate an additional unlimited amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Dateso long as, and after giving effect to the incurrence of such Incremental Facility (excluding the 2016 cash proceeds of any Incremental Term B Loans and for purposes of netting and, in the 2016 case of any Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) assuming the aggregate principal full amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (Athereof is fully drawn), the “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 Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters Test Period for which financial statements are internally availablewere required to have been delivered pursuant to Section 6.01 (or, if no Test Period has passed, as of the last four quarters ended), in each case, as if such Incremental Facility (and Revolving Loans in an amount equal to the full amount of any Additional Term Loans or Additional such Incremental Revolving Credit Commitments, as applicable and in either case incurred pursuant to this clause (C), available under such Additional Commitments Increase) had been outstanding on the last day of such four-quarter period, andshall not exceed 2.50 to 1.00, with the Borrower electing whether such Incremental Facility have been incurred (in each case whole or in part) under clauses (x) with respect to any Additional Revolving Credit Commitment incurred pursuant to this clause (Cincluding the parenthetical thereunder), assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding the cash proceeds and/or (z) in its sole discretion. Each Class of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (Incremental Facility incurred under this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class Section 2.15 shall be in an aggregate principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be is not less than $10,000,000 (or, if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 pursuant to the date that is 18 months after the Amendment No. 1 Effective Date, parenthetical to clause (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 pointsimmediately preceding sentence, then the Applicable Rate for the Term B Loans shall be 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 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$5,000,000), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion 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)Incremental Facility.
(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 2.16(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.
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Increase in Commitments. (a)
(a) The Borrower may by written Upon notice to the Administrative Agent, at any time after the Effective Date, the Borrower may request that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent elect to seek within 10 Business Days after Borrower’s request), (x) commitments (“the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish Borrower may identify one or more new Classes financial institutions which are not existing Lenders (and which are not Loan Parties or Affiliates of Term Loans; provided that:
(iLoan Parties) the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 that are internally available, as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable and in either case incurred pursuant to this 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $125,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the identity terms of the Persons (each of which any Additional Revolving Credit Advances shall be a Person the same as those for the existing Revolving Credit Advances, except 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 shall be permitted to pay upfront fees to the Additional Revolving Credit Lenders in amounts to be agreed. Notwithstanding anything contained herein to the contrary, the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments.
(b) Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the portion of the Additional Commitment to be provided by each such PersonRevolving Credit Lenders. As a condition conditions precedent to the effectiveness of any the Additional CommitmentsRevolving Credit Commitment Amendment, the Borrower shall deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date 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)such increase, (i) the representations and warranties of the Loan Parties contained in Article V IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, date (in which case they shall have been such representations and warranties are true on and correct in all material respects as of such earlier date) and without duplication of any materiality qualifiers applicable thereto, 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 existsexists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably request, in order to enable the Agents and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board. On each Additional Revolving Credit Commitments Effective Date with respect to Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Revolving Credit Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan Revolving Credit Advance to the Borrower Company 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 (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 Advance shall make such be a “Revolving Credit Loans in accordance with Section 2.01(b)Advance” for all purposes of this Agreement and the other Loan Documents.
(c) Any other terms of Additional Revolving Credit Commitment Amendment and any related documentation entered into in respect may, without the consent of any Lenders (other than Additional Term Commitments shall be on terms and pursuant Revolving Credit Lenders that are party to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepaymentsRevolving Credit Commitment Amendment), 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 effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatereasonably necessary, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(ed) This Section 2.16 2.18 shall supersede any provisions in Section 2.13 or Section 11.01 9.01 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 Revolving Credit Commitment. ARTICLE III—Article III
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Increase in Commitments. (a) The Any Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (x) each, an “Incremental Term Facility”; the commitments (thereunder are referred to as “Additional Revolving Credit Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) to and/or increase the Revolving Credit Commitments and/or (yany such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (1) commitments total aggregate amount for all such Incremental Facilities after the Amendment No. 2 Effective Date (“Additional Term Commitments”assuming, for the purposes of determining each of clauses (A) to increase and (B), in the aggregate principal amount case of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(iIncremental Revolving Increase, the full amount thereof is drawn) the aggregate amount of all Additional Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) after $500,000,000 and (B) an amount such that, subject to Section 1.03(e), at the Amendment No. 1 Effective Date, time of such incurrence and after giving effect to thereto on a pro forma basis the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Secured 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 clause (C), available under such Additional Commitments had been outstanding on the last day of such period, and, in each case calculated assuming (xi) 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 no proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 Incremental Facility shall be considered Unrestricted Cash and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any amounts incurred under clause (A) concurrently with amounts incurred under clause (B) will not count as Indebtedness for the purposes of calculating the Secured Leverage Ratio in clause (B) at such increase time) is less than or any new Class equal to 3.00 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be in an aggregate less than a minimum principal amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such 25,000,000 or, if less, the remaining amount may be less than $10,000,000 if such amount represents all remaining availability under permitted pursuant to the limit set forth in the preceding foregoing clause (i1);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Increase Effective Date”) on which the such Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date reasonably acceptable not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the such Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as portion of the Additional Commitments Effective Date signed by a Responsible Officer of Incremental Facility. Notwithstanding the Borrower certifying thatforegoing, 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 no 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) notice shall be deemed to refer to required in connection with the most recent financial statements furnished Incremental Revolving Increase provided pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default existsAmendment No. 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)1.
(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 2.16(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.
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Increase in Commitments. (a) The Borrower may by written notice At any time and from time to time the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to Company may, on the terms set forth below, increase the aggregate amount of the Revolving Credit Commitments and/or to an amount not to exceed $450,000,000 by delivering a Commitment Amount Increase Request substantially in the form attached hereto as Exhibit O or in such other form reasonably acceptable to the Agent at least three (y3) commitments Business Days prior to the desired effective date of such increase (the “Additional Term CommitmentsCommitment Amount Increase”) to increase identifying an additional Bank (or additional Revolving Credit Commitments for existing Bank(s)), the aggregate principal amount of any existing Class its Revolving Credit Commitment (or additional amount of Term Loans or to establish one or more new Classes of Term Loansits Revolving Credit Commitment(s)); provided that:
provided, however, that (i) any additional Bank must be an Eligible Assignee, (ii) any increase of the aggregate amount of all Additional Commitments shall not exceed the sum of (A) after the Amendment No. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
25,000,000, (iii) no Potential Default or Event of Default shall have occurred and be continuing at the final maturity time of the request or the effective date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
Commitment Amount Increase, and (iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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(a5 hereof shall be true and correct at the time of such request and on the effective date of such Commitment Amount Increase. The effective date of the Commitment Amount Increase shall be agreed upon by the Company and the Agent. Upon the effectiveness of any increase of the Revolving Credit Commitments the new Bank(s) (or, if applicable, existing Bank(s)) shall advance Revolving Credit Loans in an amount sufficient such that after giving effect to its Revolving Credit Loans each Bank shall have outstanding its Commitment Percentage of Revolving Credit Loans. It shall be a condition to the effectiveness of any increase of the Revolving Credit Commitments that (i) if any Eurodollar Loans are outstanding under the Revolving Credit on the date of such effectiveness, such Eurodollar Loans shall be deemed to refer be prepaid on such date and the Borrowers shall pay any amounts owing to the most recent financial statements furnished Banks pursuant to subsection (a) of Section 6.01 and 9.4 hereof, (ii) no Default or Event the Borrowers shall not have terminated any portion of Default existsthe Revolving Credit Commitments pursuant to the Section 3.6 hereof at any time during the six month period ending on the effective date of any requested Commitment Amount Increase. On each Additional Commitments Effective Date with respect The Borrowers agree to pay any reasonable out-of-pocket expenses of the Agent relating to any Additional Term Commitment Amount Increase. Promptly upon the effectiveness of any Commitment Amount Increase, the Company shall execute and deliver new Revolving Notes in the amount of any additional Bank’s Revolving Credit Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan . Notwithstanding anything herein to the Borrower in a principal amount equal contrary, no Bank shall have any obligation to such Person’s Additional Term Commitment. The Borrower shall prepay increase any of its Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional and no Bank’s Revolving Credit Commitment (shall be increased without its consent thereto, and pay any additional amounts required pursuant each Bank may at its option, unconditionally and without cause, decline to Section 3.05) to the extent necessary to keep the outstanding increase its 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)Commitment.
(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 2.16(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 1 contract
Increase in Commitments. (a) The At any time on or before March 31, 2013, Borrower may by written notice to the Administrative Agent elect and without the consent of the other Lenders hereunder request increases to seek the existing Commitments (x) commitments (any such increase, an “Additional Revolving Credit CommitmentsIncremental Commitment”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal ). Each Incremental Commitment shall be in a minimum amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) at least $5.0 million and the aggregate amount of all Additional Incremental Commitments shall not exceed the sum of (A) after the Amendment No$20.0 million. 1 Effective Date, and after giving effect to the incurrence of the 2016 Incremental Term B Loans and the 2016 Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, to the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 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 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date;
(iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (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 Amendment No. 1 Effective 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 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 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), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 Such notice shall specify (x) the date (each, an “Additional Commitments Effective Increased Amount Date”) on which the Borrower proposes that the Additional Incremental Commitments shall be effectivemade available, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent, and the amount of the Incremental Commitments. The Administrative Agent shall notify Borrower in writing of the identity of each Lender or other financial institution reasonably acceptable to the Administrative Agent and the Borrower (yeach, an “Incremental Lender”) 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)) to whom the Borrower proposes would provide the Additional Incremental Commitments have been allocated and the amounts of such allocations; provided that any Lender approached to provide all or a 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 Incremental 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 datemay elect or decline, in which case they its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall have been true and correct in all material respects become effective as of such earlier dateIncreased Amount Date; provided that (1) such Incremental Commitment will constitute permitted debt and the liens securing the same will constitute permitted liens, in each case, under the Senior Notes Indenture, the Senior Secured Notes Indenture, and except that for purposes of this Section 2.16(b)the Senior Secured Notes Security Agreement, 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 (ii2) 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 (has occurred 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 continuing or would result after giving effect to the making of such Additional Revolving Credit Incremental Commitments and Loans or the application of the proceeds therefrom, and the chief financial officer of the Borrower shall make have delivered a certificate, in form and substance satisfactory to Administrative Agent, with respect to items (1) and (2) herein, and (3) such Revolving Credit Loans increase in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term the Commitments shall be on terms evidenced by one or more joinder agreements (the “Increase Joinder”) executed by Borrower, the Administrative Agent and pursuant each Lender making such Incremental Commitment, in form and substance satisfactory to documentation agreed between each of them. The Increase Joinder may, without the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect consent 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)other Lenders, (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 effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.162.17, and each shall be recorded in the register, each of which shall be subject to the requirements set forth in Section 2.14(e). All terms and conditions of any Loans or other Obligations relating to Incremental Commitments shall be on the same terms and conditions as those applicable to Commitments, Loans and other Obligations under this Agreement. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Loans shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to Incremental Commitments made pursuant to this Agreement.
(eb) This Section 2.16 shall supersede On any provisions in Section 2.13 or Section 11.01 Increased Amount Date on which Incremental Commitments are effected, subject to the contrarysatisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Loans and participations in Letters of Credit outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and have the same terms as any existing Loan and (iii) each Incremental Lender shall become a Lender with respect to the Commitments and all matters relating thereto. Borrower shall make any payments required pursuant to Section 2.12 in connection with any adjustment of Loans pursuant to this Section 2.17(b). Assignments made to effect this Section 2.17(b) shall be made in accordance with Section 11.04.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may Borrowers may, by written notice to the Administrative Agent elect Agents at any time after the Closing Date and prior 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 existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided thatLoan Maturity Date, request:
(i) once, on any single occasion, Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $5,000,000 from one or more Incremental Revolving Credit Lenders which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the aggregate approval of the Agents. Such notice shall set forth (i) the amount of all Additional the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $1,000,000), and (ii) the date on which such Incremental Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than 10 Business Days nor more than 60 days after the Amendment Nodate of such notice, unless otherwise agreed to by the Agents). 1 Effective Date, and after giving effect Notwithstanding anything contained herein to the incurrence contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans; and
(ii) on any other single occasion, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $25,000,000 from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the 2016 Agents. Such notice shall set forth (i) the amount of the Incremental Term B Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Agents) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the 2016 terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrowers may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrowers and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as any Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrowers and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as any Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, available under such Additional Commitments had been outstanding on that, without 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 prior written consent of the maximum amount of Loans available thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
Date and (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders average life to maturity 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 Amendment No. 1 Effective 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 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Other Term Loans or exceeds by more than 50 basis points the applicable Class sum 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 margin then in effect for Term Loans or such Outstanding Term that are Eurodollar Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and plus (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) one-quarter of the amount of such upfront fee initially paid in connection with respect of the Additional Term Loans or Outstanding (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Term Loan Margin then in effect for each such affected Type of Term Loans shall automatically be excludedincreased by the Yield Differential, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds effective upon the Eurodollar Rate “floor” or Base Rate “floor” applicable to making of the Outstanding Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and 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 used 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 2.16(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.prior sentence,
Appears in 1 contract
Increase in Commitments. (a) The Borrower may may, by written notice to the Administrative Agent elect at any time after the Closing Date and prior to seek (x) commitments (“Additional Revolving Credit Commitments”) the Term Loan Maturity Date, request on one or more occasions, up to increase three in the aggregate, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and/or from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (yeach of which shall be entitled to agree or decline to participate in its sole discretion) commitments (“Additional Term Commitments”) to increase the in an aggregate principal amount not to exceed $75,000,000; provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
the Administrative Agent in its reasonable discretion. Such notice shall set forth (i) the aggregate amount of all Additional the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (a minimum amount of $5,000,000, with increments of $1,000,000 thereafter), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not exceed the sum of (A) be less than 15 days nor more than 60 days after the Amendment Nodate of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). 1 Effective Date, and after giving effect Notwithstanding anything contained herein to the incurrence of contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the 2016 terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrower may seek Incremental Term B Loans Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the 2016 Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment Increase, (x) $75,000,000 less (y) the aggregate principal amount of Junior Lien Indebtedness incurred under Section 7.02(b)(i) less (z) the aggregate principal amount of such Incremental Notes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Lender. Each Incremental Term Loans Loan Assumption Agreement and voluntary commitment reductions of Additional Incremental Revolving Credit Commitments, to Assumption Agreement shall specify the extent such Additional Term Loans and Additional Revolving Credit Commitments 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 terms 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 Incremental Term Loans or Additional Incremental Revolving Credit CommitmentsLoans, as applicable and in either case incurred pursuant applicable, to this clause (C)be made thereunder; provided, available under such Additional Commitments had been outstanding on that, without 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 prior written consent of the maximum amount of Loans available thereunderRequired Lenders, and (y) excluding the cash proceeds of any Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) the final maturity date of any Additional Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date;
, and (ivii) the Additional Term Loans shall have a Weighted Average Life average life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity 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 Other Term Loans shall be determined by no shorter than the Borrower and the lenders weighted average life to maturity 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 Amendment No. 1 Effective 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 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 Applicable Rate for the Term B Loans ; and provided, further, that, in determining if the Applicable Rate with respect to Additional Initial Yield on such Other Term Loans or exceeds by more than 50 basis points the applicable Class sum of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the Term Loans (the amount of such excess above 50 basis points being referred to herein as the “OIDYield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) or upfront or similar fees the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be deemed to constitute like amounts of OID) payable increased by the Borrower amount of any “LIBOR floor” applicable to the lenders providing such Additional Other Term Loans or on the date such Outstanding Other Term Loans in are made exceeds the primary syndication thereof Adjusted Eurodollar Rate) plus (with OID being equated to interest based on y) if the Lenders making such Other Term Loans receive an assumed four-year upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront divided by the lesser of (a) the average life to maturity) shall be included maturity of such Other Term Loans and (B) customary arrangement or commitment fees payable four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to any lead arranger (or its affiliates) in connection the extent not consistent with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” terms applicable to the Outstanding Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the Eurodollar Rate “floor” or Base Rate applicable existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term B Loans remain outstanding and such additional rights and provisions shall be increased so that deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the applicable part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The terms of any Incremental Revolving Credit Commitments will be consistent with the terms of the Revolving Loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “floor” is Incremental Amendment”) and furnished to the same;other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(vic) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) the Additional All Incremental Term Loans shall rank pari passu in right of payment and security with the existing Loans; and
(ix) the Additional initial 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 guaranteed by 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 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 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 AgentGuarantors.
(d) The Additional Commitments Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (satisfied 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 shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, to effect (ii) the provisions of this Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 2.167.07.
(e) This Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 2.16 3.02 shall supersede apply to any provisions conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13 or Section 11.01 2.13(b) required to be made after the contrarymaking of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (Eastern Co)
