Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, subject to the following: (i) the sum of (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and (ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that: (A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) and in integral multiples of Five Million Dollars ($5,000,000) in excess thereof; (B) no Default or Event of Default shall exist before, and immediately after giving effect to, such increase; (I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and (II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement; (I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and (II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent; (E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase; (F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase: (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and (II) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1; (III) no Default or Event of Default exists; (G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and (H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section. (iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that: (A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof; (B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan; (I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and (II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement; (I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or (II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent; (E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase; (F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase: (I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1; (II) no Default or Event of Default exists; and (III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; (G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement); (H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan; (I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and (J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Heritage Insurance Holdings, Inc.), Credit Agreement (Heritage Insurance Holdings, Inc.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term LoansLoans (each such increase in the Revolving Commitments or establishment of an additional Term Loan an “Incremental Facility” and collectively, “Incremental Facilities”) subject to the following:
(i) the sum of with respect to any such Incremental Facility:
(A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), all Incremental Facilities shall not exceed Fifty Million Dollars FIFTY MILLION DOLLARS ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(AB) any such increase Incremental Facility shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereofthereof (or, in each case, such lesser amount as the Administrative Agent may agree in its sole discretion);
(BC) no Default or Event of Default shall exist before, before and immediately after giving effect toto such Incremental Facility, provided that in the case of an Incremental Facility the proceeds of which are used to finance a Limited Condition Acquisition, such increase;
(I) no existing Lender requirement shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching tested on the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, Limited Condition Testing Date and (y) certifying that, before and after giving effect subject to Section 5.2 on the effective date of such increase:Incremental Facility;
(I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(IID) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1, provided that with respect to a Limited Condition Acquisition, such requirement shall be (x) tested on the Limited Condition Testing Date and (y) subject to Section 5.2 on the effective date of such Incremental Facility;
(II) no Default or Event of Default exists; and
(IIIE) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan such Incremental Facility (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes the use of such calculation, that the Revolving Commitments are fully drawnproceeds thereof), with the financial covenants set forth in clauses (a) and (b) of Section 7.88.8, recomputed as of (i) in the case of a Limited Condition Acquisition, the applicable Limited Condition Testing Date and (ii) in all other cases, the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(GF) the Applicable Margin of any additional Term Loan no existing Lender shall be as set forth in the under any obligation to provide a commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, to any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A Incremental Facility and any existing additional Term Loan may such decision whether to provide a commitment to an Incremental Facility shall be increased to the extent necessary to satisfy this requirement)in such Lender’s sole and absolute discretion;
(HG) the maturity date for any additional Term Loan Person providing a commitment to an Incremental Facility shall be qualify as set forth in the an Eligible Assignee and shall have executed a commitment agreement or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.;
(H) any such Incremental Facility shall be subject to receipt by the Administrative Agent of:
Appears in 2 contracts
Samples: Credit Agreement (Computer Programs & Systems Inc), Credit Agreement (Computer Programs & Systems Inc)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to timetime after the Third Amendment Effective Date, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, term loans subject to the following:
(ia) the sum of (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), 2.18 plus (B) the aggregate principal amount of any additional Term Loans advanced to the Borrower pursuant to this Section 2.1(d), 2.18 shall not exceed Fifty Million Dollars THREEFIVE HUNDRED FIFTY MILLION DOLLARS ($50,000,000350,000,000500,000,000 ), provided that, notwithstanding ;
(b) With respect to any increase in the foregoing, the aggregate Revolving Commitments:
(i) any such increase shall be in a minimum initial principal amount of $2,000,000 and integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Default shall exist before and immediately after giving effect to any increases such increase;
(iii) after giving effect to the incurrence of any such increase in the Revolving Commitments on a Pro Forma Basis (recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to this Section 2.1(d) 7.1, including after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith and assuming that any increase in the Revolving Commitments are fully drawn), the Borrower shall not exceed Twenty Five Million Dollars ($25,000,000); andbe in compliance with the financial covenants set forth in Section 8.8;
(iiiv) The Borrower may, at any time and from time increase to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) may be made with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) and in integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such increase;
(Iv) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(Fvii) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of the establishment of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 and in each of the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such increaseincrease (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects) as of such earlier date, and except that, that for purposes of this Section 2.1(d)2.18, the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, (III2) no Default or Event of Default exists;
, (G3) any increase the conditions in Section 2.18(b)(iii) are satisfied and (4) the Revolving Commitments shall have the same terms as the Revolving Commitments conditions precedent in existence prior to giving effect to such increaseSection 5.2 are satisfied; and
(Hviii) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Partiesextent that the joinder or commitment agreements described in clause (vi) above provide for an applicable margin of, if required and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall be provided by increased automatically (without the Administrative Agent or consent of Required Lenders) such that the Lenders providing Applicable Margin and/or the Commitment Fee (as applicable) for such increased existing Revolving Commitments is not less than the applicable margin and/or the commitment fee (as applicable) for such additional Revolving Commitments) relating . All other terms with respect to any additional Revolving Commitments, including, without limitation, maturity date and prepayments, shall be the same as those applicable to the corporate or other necessary authority for such increase in the Aggregate existing Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative AgentCommitments. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this SectionSection (it being understood that any such prepayment may be funded with the proceeds of a borrowing, or deemed borrowing, of Revolving Loans).
(iiic) The Borrower may, at any time and from time With respect to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided thatLoans:
(Ai) any such increase additional Term Loan shall be in a minimum aggregate initial principal amount of Ten Million Dollars ($10,000,000) 2,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(Bii) no Default or Event of Default shall exist before, before and immediately after giving effect to, to any such additional Term Loan;
(Iiii) after giving effect to the incurrence of any additional Term Loan on a Pro Forma Basis (recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1, including after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith and assuming that any increase in the Revolving Commitments are fully drawn), the Borrower shall be in compliance with the financial covenants set forth in Section 8.8;
(iv) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender shall be reasonably acceptable to the Administrative Agent and shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(Fvi) the establishment of any such additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, additional Term Loan and (y) certifying that, before and after giving effect to such increase:
additional Term Loan, (I1) the representations and warranties contained in Section 6 and in each of the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects) as of such earlier date, and, and except that for purposes of this Section 2.1(d)2.18, the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, (II2) no Default or Event of Default exists; and
, (III3) the Borrower shall be conditions in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments Section 2.18(c)(iii) are fully drawn), with the financial covenants set forth in clauses (a) satisfied and (b4) of the conditions precedent in Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.15.2 are satisfied;
(Gvii) the Applicable Margin of any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that in the event that the all-in yield for any additional Term Loan is higher than the all-in yield for the existing Term Loans (the “Existing Term Facilities”) by more than 50 basis points, then the Applicable Margin for the applicable Existing Term Facility shall be increased to the extent necessary so that such all-in yield is equal to the all-in yield for such additional Term Loan minus 50 basis points; provided, further, that in determining the interest rate margins applicable to any additional Term Loan and the applicable Existing Term Facility, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID, with OID being equated to interest based on assumed four-year life to maturity) payable by the Borrower to the Lenders (which fees shall include, for the avoidance of doubt, the portion of any such fees paid to the Lenders from the proceeds of any underwriting fee paid to any Lead Arranger) under the applicable Existing Term Facility in the initial primary syndication thereof and with respect to any additional Term Loan shall be included and the effect of any and all interest rate floors shall be included and (y) customary arrangement or commitment fees payable to the Lead Arrangers (or their affiliates) in connection with the applicable Existing Term Facility, shall be excluded;
(viii) the maturity date for any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such maturity date shall not be earlier than the Term Loan Maturity Date or the maturity date of any other then existing Term Loan; and
(ix) the scheduled principal amortization payments (if any) under any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the First Amendment Term Loan A and any other then existing Term Loan.
(d) the proceeds of any such increase in the Revolving Commitments or additional Term Loan shall be used to acquire additional Marina Properties or other Real Estate Assets, to pay fees and expenses related thereto, to make capital expenditures or for general corporate purposes; and
(Je) the Administrative Agent Borrower shall have received all provide legal opinions and other documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided reasonably requested by the Administrative Agent or in writing in connection with the Lenders providing establishment of any such increase in the Revolving Commitments and/or such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower Borrowers may, at any time and from time to time, upon prior written notice by the Borrower Borrowers to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, Loans and subject to the following:
(i) the sum of (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), 2.1(d)(ii) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d2.1(d)(iii), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower Borrowers may, at any time and from time to time, upon prior written notice by the Borrower Borrowers to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower Borrowers and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrowers shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments, with the financial covenants set forth in Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Company for which financial statements have been delivered pursuant to Section 7.1;
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, each Credit Party dated as of the date of such increase, increase signed by an Authorized Officer of the Borrower such Credit Party (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor such Credit Party approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III2) no Default or Event of Default exists;; and
(G) any increase to the extent that the joinder or commitment agreements described in clause (D) above provide for an applicable margin of, and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall have be increased automatically (without the same terms consent of Required Lenders) such that the Applicable Margin and/or the Commitment Fee (as the applicable) for such existing Revolving Commitments in existence prior to giving effect to is not less than the applicable margin and/or the commitment fee (as applicable) for such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased additional Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower Borrowers shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this Section.
(iii) The Borrower Borrowers may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans term loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower Borrowers (other than the Borrower Borrowers or any Affiliate or Subsidiary of the BorrowerBorrowers) and reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(IC) the Borrowers shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Company for which financial statements have been delivered pursuant to Section 7.1;
(D) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower each Credit Party dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower such Credit Party (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor such Credit Party approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;.
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower Borrowers in connection therewith; , provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on Applicable Margin for the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent 50 basis points (0.50%) higher more than the corresponding all-in yield Applicable Margin of any then existing Term Loans (determined on and if the same basis) difference is greater than 0.50%, the Applicable Margin applicable to the existing Term Loan A Loans shall be automatically increased, without any further action on the part of the Borrowers or any then outstanding the Lenders, to be 0.50% below the Applicable Margin applicable to the additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirementLoan);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower Borrowers in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;; and
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower Borrowers in connection therewith, ; provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of either of (I) the Term Loan A and Revolving Loans or (II) any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, term loans subject to the following:
(i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not to exceed Twenty Five Million Dollars THIRTY-FIVE MILLION DOLLARS ($25,000,00035,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees (other than the Borrower or any Affiliate or Subsidiary of the Borrower) selected by the Borrower and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent Agent, the Swingline Lender and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any such increase in the Revolving Commitments (in each case assuming that such increase in the Revolving Commitments was fully drawn), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such LenderXxxxxx’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that, that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(III2) no Default or Event of Default exists;
(G) any increase in the applicable margin of, and/or commitment fee for, additional Revolving Commitments shall have equal the same terms as Applicable Margin and/or Revolving Commitment Fee with respect to the existing Revolving Commitments in existence prior to giving effect to such increase; andCommitments;
(H) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for upfront fees in connection with any such increase in the Aggregate Revolving Commitments;
(I) the terms of the additional Revolving Commitments shall be identical to those of the existing Revolving Commitments; and
(J) the Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this SectionSection 2.1(d).
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans term loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any additional Term Loan (and after giving effect on a pro forma basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing all or any portion of any additional term loan shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers Lead Arranger or their its Affiliates) applicable to such for any additional Term Loan shall not be more than fifty hundredths of a percent 50 basis points (0.50%) higher more than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding existing Term Loans unless the Applicable Margin of any then existing Terms Loans is increased such that the all-in yield (determined on the same basis) of such additional Term Loan does not exceed the all-in yield (it being understood that interest determined on the same basis) of any then existing Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirementLoans by more than 50 basis points (0.50%);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that such date shall not be earlier than the Term Loan A Latest Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and;
(J) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing upfront fees in connection with any such additional Term Loan; and
(K) relating to the corporate or other necessary authority for such additional Term Loan Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Guardian Pharmacy Services, Inc.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term LoansLoans (each such increase in the Revolving Commitments or establishment of an additional Term Loan an “Incremental Facility” and collectively, “Incremental Facilities”) subject to the following:
(i) the sum of with respect to any such Incremental Facility:
(A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), all Incremental Facilities shall not exceed Fifty Million Dollars FIFTY MILLION DOLLARS ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(AB) any such increase Incremental Facility shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereofthereof (or in such lesser amounts as the Administrative Agent may approve in its sole discretion);
(BC) no Default or Event of Default shall exist before, and immediately after giving effect to, such increasethe Standard Conditions are satisfied;
(ID) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(IIE) no Default or Event of Default exists; and
(III) the Borrower existing Lender shall be under any obligation to provide a commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility shall be in compliance, on such Lender’s sole and absolute discretion;
(F) any Person providing a Pro Forma Basis after giving effect commitment to an Incremental Facility shall be a Lender or qualify as an Eligible Assignee and shall have executed a commitment agreement or joinder reasonably satisfactory to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1Administrative Agent;
(G) the Applicable Margin of any additional Term Loan such Incremental Facility shall be subject to receipt by the Administrative Agent of:
(1) a certificate of the Borrower and each Guarantor dated as set forth in of the commitment date of such Incremental Facility signed by an Authorized Officer of the Borrower or joinder agreement executed such Guarantor certifying and attaching the resolutions adopted by the Borrower in connection therewith; provided and each Guarantor approving or consenting to such Incremental Facility;
(2) a certificate of the Borrower dated as of the date of such Incremental Facility signed by an Authorized Officer of the Borrower certifying that the all-conditions in yield clauses (C) and (D) above are satisfied as of such date specified therein;
(3) 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
(4) customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender (including interest rate marginseach Person providing a commitment to such Incremental Facility), any interest rate floors, original issue discount and upfront fees dated as of the effective date of such Incremental Facility;
(based ii) in the case of an Incremental Facility that is an increase in the Revolving Commitments:
(A) such Incremental Facility shall be on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring exact same terms and underwriting fees paid or payable pursuant to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the exact same basis) documentation applicable to the Term Loan A or any then outstanding additional Term Loan Revolving Commitments; and
(it being understood that interest B) on the Term Loan A effective date of such Incremental Facility, the Borrower shall (x) request a Borrowing to be funded solely by the Lenders party to such Incremental Facility, and (y) use the proceeds thereof solely to prepay any existing additional Term Loan may be increased Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to satisfy keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any nonratable increase in the Revolving Commitments under this requirement);Section.
(Hiii) in the case of an Incremental Facility that is an additional Term Loan:
(A) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(IB) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life Weighted Average Life to maturity (as calculated by the Administrative Agent) Maturity of any such additional Term Loan shall not be less than the weighted life Weighted Average Life to maturity Maturity of the Term Loan A and any other then existing Term Loan;
(C) if the All-In Yield on such Incremental Facility exceeds the All-In Yield on the Revolving Commitments or any outstanding Term Loan by more than 50 basis points (0.50%) per annum, then the Applicable Margin payable by the Borrower with respect to the Revolving Commitments and such outstanding Term Loan shall on the effective date of such Incremental Facility be increased to the extent necessary to cause the All-In Yield on the Revolving Commitments or such outstanding Term Loan to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Facility;
(D) such Incremental Facility shall share ratably in any mandatory prepayments of any other Term Loan (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Loans) and shall have ratable voting rights as the other Term Loans (or otherwise provide for more favorable voting rights for the then outstanding Term Loans); and
(JE) subject to the Administrative Agent shall have received all documents foregoing clauses, the other terms of such Incremental Facility (including secretary’s certificatesinterest rate, resolutions of interest rate margins, interest rate floors, fees, original issue discount, call protection or prepayment penalty, amortization and final maturity date) shall be as agreed by the board of directors of Borrower and the Credit Parties Persons providing such Incremental Facility and customary opinions of counsel to the Credit Parties, if required to be provided reasonably approved by the Administrative Agent or Agent; provided that such terms and conditions shall not be more restrictive than the terms and conditions applicable to any outstanding Term Loan unless (x) the Lenders providing under any such additional outstanding Term Loan also receive the benefit of such more restrictive terms or (y) any such provisions apply only after the maturity date of such outstanding Term Loan) relating . Any Incremental Facility and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the corporate or benefits afforded by, this Agreement and the other necessary authority for such additional Term Loan Credit Documents, and any other matters relevant theretoshall, all in form without limiting the foregoing, benefit equally and substance reasonably satisfactory to ratably from the Administrative AgentGuarantees and security interests created by the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (Neogenomics Inc)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, term loans subject to the following:
(i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), in each case, made after the Fourth Amendment Effective Date, shall not exceed Fifty Million Dollars THIRTY-FIVE MILLION DOLLARS ($50,000,00035,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees (other than the Borrower or any Affiliate or Subsidiary of the Borrower) selected by the Borrower and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent Agent, the Swingline Lender and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any such increase in the Revolving Commitments (in each case assuming that such increase in the Revolving Commitments was fully drawn), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such LenderXxxxxx’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that, that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(III2) no Default or Event of Default exists;
(G) any increase in the applicable margin of, and/or commitment fee for, additional Revolving Commitments shall have equal the same terms as Applicable Margin and/or Revolving Commitment Fee with respect to the existing Revolving Commitments in existence prior to giving effect to such increase; andCommitments;
(H) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for upfront fees in connection with any such increase in the Aggregate Revolving Commitments;
(I) the terms of the additional Revolving Commitments shall be identical to those of the existing Revolving Commitments; and
(J) the Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this SectionSection 2.1(d).
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans term loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any additional Term Loan (and after giving effect on a pro forma basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing all or any portion of any additional term loan shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers Lead Arranger or their its Affiliates) applicable to such for any additional Term Loan shall not be more than fifty hundredths of a percent 50 basis points (0.50%) higher more than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding existing Term Loans unless the Applicable Margin of any then existing Terms Loans is increased such that the all- in yield (determined on the same basis) of such additional Term Loan does not exceed the all-in yield (it being understood that interest determined on the same basis) of any then existing Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirementLoans by more than 50 basis points (0.50%);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that such date shall not be earlier than the Term Loan A Latest Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and;
(J) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing upfront fees in connection with any such additional Term Loan; and
(K) relating to the corporate or other necessary authority for such additional Term Loan Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Guardian Pharmacy Services, Inc.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, term loans subject to the following:
(i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), in each case, made after the Sixth Amendment Effective Date, shall not exceed Fifty Million Dollars THIRTY-FIVE MILLION DOLLARS ($50,000,00035,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees (other than the Borrower or any Affiliate or Subsidiary of the Borrower) selected by the Borrower and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent Agent, the Swingline Lender and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any such increase in the Revolving Commitments (in each case assuming that such increase in the Revolving Commitments was fully drawn), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such LenderXxxxxx’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that, that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(III2) no Default or Event of Default exists;
(G) any increase in the applicable margin of, and/or commitment fee for, additional Revolving Commitments shall have equal the same terms as Applicable Margin and/or Revolving Commitment Fee with respect to the existing Revolving Commitments in existence prior to giving effect to such increase; andCommitments;
(H) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for upfront fees in connection with any such increase in the Aggregate Revolving Commitments;
(I) the terms of the additional Revolving Commitments shall be identical to those of the existing Revolving Commitments; and
(J) the Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this SectionSection 2.1(d).
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans term loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and and, with respect to any new Lender, reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(IC) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of any additional Term Loan (and after giving effect on a pro forma basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in Section 9.17, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 8.6 (and if the Borrower has delivered to the Agent notice of its election to increase Consolidated Leverage Ratio test level pursuant to the terms of Section 9.17(b) and has provided an officer’s certificate demonstrating such compliance, after giving effect to any such Leverage Ratio Increase);
(D) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing all or any portion of any additional term loan shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase or certifying that the prior resolutions delivered on the Effective Date approving such increase are still in full force and effect and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 7 and the other Credit Loan Documents are true and correct in all material respects on(except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects) as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 7.3 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) Section 8.6, and (b) of Section 7.1;
(II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers Lead Arranger or their its Affiliates) applicable to such for any additional Term Loan shall not be more than fifty hundredths of a percent 50 basis points (0.50%) higher more than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding existing Term Loans unless the Applicable Margin of any then existing Terms Loans is increased such that the all-in yield (determined on the same basis) of such additional Term Loan does not exceed the all-in yield (it being understood that interest determined on the same basis) of any then existing Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirementLoans by more than 50 basis points (0.50%);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that such date shall not be earlier than the Term Loan A Latest Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A, Sixth Amendment Term Loan A and any other then existing Term Loan; and;
(J) the Administrative Agent Borrower shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent paid any applicable arrangement or the Lenders providing upfront fees in connection with any such additional Term Loan; and
(K) relating to the corporate or other necessary authority for such additional Term Loan Borrower shall have delivered legal opinions, resolutions, officer’s certificates and any other matters relevant thereto, all in form and substance customary documentation as reasonably satisfactory to requested by the Administrative Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Guardian Pharmacy Services, Inc.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, Loans subject to the following:
: (i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not to exceed Twenty Five Million Dollars FORTY MILLION DOLLARS ($25,000,00040,000,000); and
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:: 38
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
; (B) no Default or Event of Default shall exist before, before and immediately after giving effect to, such increase;
(I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
; (IC) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn)Commitments, with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(ID) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, increase its Revolving Commitment and any such decision whether to provide a portion of any additional Term Loan increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and(E)
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan increase its Revolving Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
; (F) any such increase in the establishment of any additional Term Loan Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, and (II2) no Default or Event of Default exists; and
and (IIIG) to the extent that the joinder or commitment agreements described in clause (E) above provide for an applicable margin of, and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall be increased automatically (without the consent of Required Lenders) such that the Applicable Margin and/or the Commitment Fee (as applicable) for such existing Revolving Commitments is not less than the applicable margin and/or the commitment fee (as applicable) for such additional Revolving Commitments. The Borrower shall be in compliance, prepay any Revolving Loans owing under this Agreement on a Pro Forma Basis after giving effect to the incurrence date of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that increase in the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) keep the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.39
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, Loans subject to the following:
: (i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not to exceed Twenty Five Million Dollars FORTY MILLION DOLLARS ($25,000,00040,000,000); and
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:: 39
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
; (B) no Default or Event of Default shall exist before, before and immediately after giving effect to, such increase;
(I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
; (IC) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn)Commitments, with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(ID) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, increase its Revolving Commitment and any such decision whether to provide a portion of any additional Term Loan increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and(E)
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan increase its Revolving Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
; (F) any such increase in the establishment of any additional Term Loan Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, and (II2) no Default or Event of Default exists; and
and (IIIG) to the extent that the joinder or commitment agreements described in clause (E) above provide for an applicable margin of, and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall be increased automatically (without the consent of Required Lenders) such that the Applicable Margin and/or the Commitment Fee (as applicable) for such existing Revolving Commitments is not less than the applicable margin and/or the commitment fee (as applicable) for such additional Revolving Commitments. The Borrower shall be in compliance, prepay any Revolving Loans owing under this Agreement on a Pro Forma Basis after giving effect to the incurrence date of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that increase in the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) keep the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.40
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Any Borrower may, at any time and from time to time, upon prior written notice by the Borrower Company to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, Loans subject to the following:
(i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not to exceed Twenty Five Million Dollars FORTY MILLION DOLLARS ($25,000,00040,000,000); and;
(ii) The Any Borrower may, at any time and from time to time, upon prior written notice by the such Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the such Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrowers shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments, with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Company for which financial statements have been delivered pursuant to Section 6.1;
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, each Borrower dated as of the date of such increase, increase signed by an Authorized Officer of the such Borrower (x) certifying and attaching the resolutions adopted by the such Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(IIi) the representations and warranties contained in Section 6 5 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and except that, that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 5.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
6.1, and (IIIii) no Default or Event of Default exists;; and
(G) any increase to the extent that the joinder or commitment agreements described in clause (D) above provide for an applicable margin of, and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall have be increased automatically (without the same terms consent of Required Lenders) such that the Applicable Margin and/or the Commitment Fee (as the applicable) for such existing Revolving Commitments in existence prior to giving effect to is not less than the applicable margin and/or the commitment fee (as applicable) for such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased additional Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower Borrowers shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this Section.
(iii) The Any Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans term loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the such Borrower (other than the any Borrower or any Affiliate or Subsidiary of the any Borrower) and reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(IIC) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(II) no Default or Event of Default exists; and
(III) the Borrower Borrowers shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, effect on a Pro Forma Basis, Basis to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawntherewith), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower Company for which financial statements have been delivered pursuant to Section 7.16.1;
(GD) the Applicable Margin no existing Lender shall be under any obligation to provide a portion of any additional Term Loan and any such decision whether to provide a portion of any additional Term Loan shall be as set forth in the commitment or such Lender’s sole and absolute discretion;
(1) any new Lender shall join this Agreement by executing such joinder agreement executed documents reasonably required by the Borrower in connection therewith; provided that the all-in yield Administrative Agent and/or (including interest rate margins, 2) any interest rate floors, original issue discount and upfront fees (based on the lesser of existing Lender electing to provide a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable Term Loan Commitment with respect to such additional Term Loan shall not be more than fifty hundredths of have executed a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable commitment agreement reasonably satisfactory to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);Administrative Agent; and
(HF) the maturity date for establishment of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life subject to maturity (as calculated receipt by the Administrative Agent) Agent of any a certificate of each Borrower dated as of the date of the establishment of such additional Term Loan shall not be less than signed by an Authorized Officer of such Borrower (x) certifying and attaching the weighted life resolutions adopted by such Borrower approving or consenting to maturity such increase, and (y) certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Section 5 and the other Credit Documents are true and correct in all material respects on and as of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificatesdate of such increase, resolutions of the board of directors of the Credit Parties and customary opinions of counsel except to the Credit Partiesextent that such representations and warranties specifically refer to an earlier date, if required in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 5.7 shall be deemed to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating refer to the corporate most recent statements furnished pursuant to clauses (a), (b), (c) and (d) of Section 6.1, and (ii) no Default or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative AgentEvent of Default exists.
Appears in 1 contract
Samples: Credit Agreement (Heckmann CORP)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, subject to the following:
(i) the sum of (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided provided, that, notwithstanding anything to the contrary in the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided , provided, that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) and and, if greater, in integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such increase;
(I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II) the representations and warranties contained in Section Article 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided , provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and and, if greater, in integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section Article 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(II) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that provided, that, the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that provided, that, such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that provided, that, the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Heritage Insurance Holdings, Inc.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term LoansLoans (each such increase in the Revolving Commitments or establishment of an additional Term Loan an “Incremental Facility” and collectively, “Incremental Facilities”) subject to the following:
(i) the sum of with respect to any such Incremental Facility:
(A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), all Incremental Facilities shall not exceed Fifty Million Dollars FIFTY MILLION DOLLARS ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(AB) any such increase Incremental Facility shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 10,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(BC) no Default or Event of Default shall exist before, before and immediately after giving effect toto such Incremental Facility, provided that in the case of an Incremental Facility the proceeds of which are used to finance a Limited Condition Acquisition, such increase;
(I) no existing Lender requirement shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching tested on the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, Limited Condition Testing Date and (y) certifying that, before and after giving effect subject to Section 5.2 on the effective date of such increase:Incremental Facility;
(I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(IID) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1, provided that with respect to a Limited Condition Acquisition, such requirement shall be (x) tested on the Limited Condition Testing Date and (y) subject to Section 5.2 on the effective date of such Incremental Facility;
(II) no Default or Event of Default exists; and
(IIIE) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan such Incremental Facility (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes the use of such calculation, that the Revolving Commitments are fully drawnproceeds thereof), with the financial covenants set forth in clauses (a) and (b) of Section 7.88.8, recomputed as of (i) in the case of a Limited Condition Acquisition, the applicable Limited Condition Testing Date and (ii) in all other cases, the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(GF) the Applicable Margin of any additional Term Loan no existing Lender shall be as set forth in the under any obligation to provide a commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, to any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A Incremental Facility and any existing additional Term Loan may such decision whether to provide a commitment to an Incremental Facility shall be increased to the extent necessary to satisfy this requirement)in such Lender’s sole and absolute discretion;
(HG) the maturity date for any additional Term Loan Person providing a commitment to an Incremental Facility shall be qualify as set forth in the an Eligible Assignee and shall have executed a commitment agreement or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.;
(H) any such Incremental Facility shall be subject to receipt by the Administrative Agent of:
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, Loans subject to the following:
(i) the sum of the (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), ) plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not to exceed Twenty Five Million Dollars FORTY MILLION DOLLARS ($25,000,00040,000,000); and;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 5,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such increase;
(IC) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments, with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(D) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1, and (2) no Default or Event of Default exists; and
(G) to the extent that the joinder or commitment agreements described in clause (E) above provide for an applicable margin of, and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall be increased automatically (without the consent of Required Lenders) such that the Applicable Margin and/or the Commitment Fee (as applicable) for such existing Revolving Commitments is not less than the applicable margin and/or the commitment fee (as applicable) for such additional Revolving Commitments. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any nonratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional term loans from existing Lenders or other Persons selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided, that:
(IA) any such increase shall be in a minimum aggregate principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before and immediately after giving effect to such additional Term Loan;
(C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments additional Term Loan (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawnand after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(ID) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects as of such earlier date, and, and except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, and (II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;.
(G) the Applicable Margin and any other components of yield on any additional Term Loan shall be as set forth in the commitment or joinder agreement executed determined by the Borrower in connection therewithand the Lenders thereunder; provided that in the event that the all-in yield (including interest rate margins, for any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) is higher than the corresponding all-in yield (determined on for the same basis) applicable to the initial Term Loan A Loans or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may (the “Existing Facilities”) by more than 50 basis points, then the Applicable Margin for the applicable Existing Facility shall be increased to the extent necessary so that such all-in yield is equal to satisfy this requirement);the all-in yield for such additional Term Loan minus 50 basis points; provided, further, that in determining the interest rate margins applicable to the additional Term Loans and the applicable Existing Facility, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID, with OID being equated to interest based on assumed four-year life to maturity) payable by the Borrower to the Lenders under the applicable Existing Facility or any additional Term Loan in the initial primary syndication thereof shall be included and the effect of any and all interest rate floors shall be included and (y) customary arrangement or commitment fees payable to the Lead Arranger (or its affiliates) in connection with the applicable Existing
(a) Facility or to one or more arrangers (or its affiliates) of any additional Term Loan, shall be excluded,
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;; and
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of either of (I) the Revolving Loans or (II) the Fourth Amendment Replacement Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Swing Line Sublimit) and/or establish one or more additional Term Loans, Loans subject to the following:
(i) the sum of After giving effect to such additional Term Loans (Aand after giving effect to any Permitted Acquisition consummated simultaneously therewith) the aggregate principal amount of any and/or increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), shall not exceed Fifty Million Dollars ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases assuming such increase in the Revolving Commitments pursuant to this Section 2.1(d) is fully-drawn), in each case, on a Pro Forma Basis, the Consolidated Total Leverage Ratio shall not exceed Twenty Five Million Dollars ($25,000,000); and3.00:1.0;
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, Agent increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Swing Line Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent Agent, the Issuing Bank and the Issuing BankSwing Line Lender; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) 10,000,000 and in integral multiples of Five Million Dollars ($5,000,000) 5,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, such increase;
(I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(IC) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of assuming such calculation, that increase in the Revolving Commitments as increased are fully is fully-drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to clauses (a) or (b) of Section 7.1; and;
(IID) no existing Lender shall be under any obligation to increase its Revolving Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion;
(1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent and/or (2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of customary legal opinions and a certificate of the Borrower dated as of the date of such increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in Section 6 and the other Credit Loan Documents are true and correct in all material respects on(or, in all respects, if already qualified by materiality). on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (or, in all respects, if already qualified by materiality) as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III2) no Default or Event of Default exists;; and
(G) any such increase in the Revolving Commitments shall have the same terms as the identical to those for Revolving Commitments in existence prior Loans under this Agreement, except for fees payable to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority commitments for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative AgentCommitments. The Borrower shall be permitted to draw on the commitments of the Lenders providing for such increase in the Revolving Commitments on a nonratable basis in order to prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided provided, that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) 10,000,000 and integral multiples of Five Million Dollars ($5,000,000) 5,000,000 in excess thereof;
(B) no Default or Event of Default shall exist before, before and immediately after giving effect to, to such additional Term Loan;
(IC) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to clauses (a) or (b) of Section 7.1;
(D) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of customary legal opinions and a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
, (I1) the representations and warranties contained in Section 6 and the other Credit Loan Documents are true and correct in all material respects on(or, in all respects, if already qualified by materiality) on and as of, of the date of such additional Term Loanincrease, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (or, in all respects, if already qualified by materiality) as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(II2) no Default or Event of Default exists; and
(III) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;.
(G) the Applicable Margin of any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliatesarranger providing such additional Term Loan) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) % higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any other then outstanding additional existing Term Loan (it being understood that interest on the Term Loan A and any other then existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that such date shall not be no earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;; and
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, ; provided that the weighted average life Weighted Average Life to maturity (as calculated by the Administrative Agent) Maturity of any such additional Term Loan shall not be less than the weighted life Weighted Average Life to maturity Maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (AdaptHealth Corp.)
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term LoansLoans (each such increase in the Revolving Commitments or establishment of an additional Term Loan an “Incremental Facility” and collectively, “Incremental Facilities”) subject to the following:
(i) the sum of with respect to any such Incremental Facility:
(A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), plus (B) the aggregate principal amount of any additional Term Loans pursuant to this Section 2.1(d), all Incremental Facilities shall not exceed Fifty Million Dollars an amount equal to ($50,000,000), provided that, notwithstanding the foregoing, the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d) shall not exceed Twenty Five Million Dollars ($25,000,000); and
(ii) The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) and in integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such increase;
(I) no existing Lender shall be under any obligation to increase its Revolving Commitment, and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(IIi) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
(II) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent greater of a certificate of the Borrower, dated as of the date of such increase, signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, $75.0 million and (y) certifying that100% of Consolidated EBITDA plus (ii) an unlimited amount so long as, before and after giving effect to such increase:
(I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Facility, the pro forma Consolidated Net Leverage Ratio shall not exceed 2.50:1.00 (for purposes of the calculation under this clause (A) assuming any increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and;
(IIB) any such Incremental Facility shall be in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or, in each case, such lesser amount as the Administrative Agent may agree in its sole discretion);
(C) no Default or Event of Default shall exist before and immediately after giving effect to such Incremental Facility, provided that in the case of an Incremental Facility the proceeds of which are used to finance a Limited Condition Acquisition, such requirement shall be (x) tested on the Limited Condition Testing Date and (y) subject to Section 5.2 on the effective date of such Incremental Facility;
(D) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) on and as of, of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, and except that, for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
(III) no Default or Event of Default exists;
(G) any increase in the Revolving Commitments shall have the same terms as the Revolving Commitments in existence prior to giving effect to such increase; and
(H) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such increased Revolving Commitments) relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable increase in the Revolving Commitments under this Section.
(iii) The Borrower may, at any time and from time to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided that:
(A) any such increase shall be in a minimum aggregate principal amount of Ten Million Dollars ($10,000,000) and integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such additional Term Loan;
(I) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
(II) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(F) the establishment of any additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, and (y) certifying that, before and after giving effect to such increase:
(I) the representations and warranties contained in Section 6 and the other Credit Documents are true and correct in all material respects on, and as of, the date of such additional Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct in all material respects as of such earlier date, and, except that for purposes of this Section 2.1(d), the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1, provided that with respect to a Limited Condition Acquisition, such requirement shall be (x) tested on the Limited Condition Testing Date and (y) subject to Section 5.2 on the effective date of such Incremental Facility;
(II) no Default or Event of Default exists; and
(IIIE) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan such Incremental Facility (including the use of proceeds thereof and after giving effect, on a Pro Forma Basis, to assuming any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that increase in the Revolving Commitments are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 7.88.8, recomputed as of (i) in the case of a Limited Condition Acquisition, the applicable Limited Condition Testing Date and (ii) in all other cases, the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(GF) the Applicable Margin of any additional Term Loan no existing Lender shall be as set forth in the under any obligation to provide a commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, to any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A Incremental Facility and any existing additional Term Loan may such decision whether to provide a commitment to an Incremental Facility shall be increased to the extent necessary to satisfy this requirement)in such Lender’s sole and absolute discretion;
(HG) the maturity date for any additional Term Loan Person providing a commitment to an Incremental Facility shall be qualify as set forth in the an Eligible Assignee and shall have executed a commitment agreement or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the Term Loan A and any other then existing Term Loan; and
(J) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided by the Administrative Agent or the Lenders providing such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.;
(H) any such Incremental Facility shall be subject to receipt by the Administrative Agent of:
Appears in 1 contract
Increase in Revolving Commitments and Establishment of Additional Term Loans. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans, term loans subject to the following:
(ia) the sum of (A) the aggregate principal amount of any increases in the Revolving Commitments pursuant to this Section 2.1(d), 2.18 plus (B) the aggregate principal amount of any additional Term Loans advanced to the Borrower pursuant to this Section 2.1(d), 2.18 shall not exceed Fifty Million Dollars THREE HUNDRED FIFTY MILLION DOLLARS ($50,000,000350,000,000), provided that, notwithstanding ;
(b) With respect to any increase in the foregoing, the aggregate Revolving Commitments:
(i) any such increase shall be in a minimum initial principal amount of $2,000,000 and integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Default shall exist before and immediately after giving effect to any increases such increase;
(iii) after giving effect to the incurrence of any such increase in the Revolving Commitments on a Pro Forma Basis (recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to this Section 2.1(d) 7.1, including after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith and assuming that any increase in the Revolving Commitments are fully drawn), the Borrower shall not exceed Twenty Five Million Dollars ($25,000,000); andbe in compliance with the financial covenants set forth in Section 8.8;
(iiiv) The Borrower may, at any time and from time increase to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) may be made with additional Revolving Commitments from any existing Lender with a Revolving Commitment or with new Revolving Commitments from any other Person that would qualify as Eligible Assignees selected by the Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank; provided that:
(A) any such increase shall be in a minimum principal amount of Ten Million Dollars ($10,000,000) and in integral multiples of Five Million Dollars ($5,000,000) in excess thereof;
(B) no Default or Event of Default shall exist before, and immediately after giving effect to, such increase;
(Iv) no existing Lender shall be under any obligation to increase its Revolving Commitment, Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender providing a Revolving Commitment in connection with any increase in Aggregate Revolving Commitments shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and
Agent and/or (II2) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(Fvii) any such increase in the Revolving Commitments shall be subject to receipt by the Administrative Agent of a certificate of the Borrower, Borrower dated as of the date of the establishment of such increase, increase signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, increase and (y) certifying that, before and after giving effect to such increase:
, (I) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such increase in the Revolving Commitments (assuming, for purposes of such calculation, that the Revolving Commitments as increased are fully drawn), with the financial covenants set forth in clauses (a) and (b) of Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(II1) the representations and warranties contained in Section 6 and in each of the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such increaseincrease (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects) as of such earlier date, and except that, that for purposes of this Section 2.1(d)2.18, the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, (III2) no Default or Event of Default exists;
, (G3) any increase the conditions in Section 2.18(b)(iii) are satisfied and (4) the Revolving Commitments shall have the same terms as the Revolving Commitments conditions precedent in existence prior to giving effect to such increaseSection 5.2 are satisfied; and
(Hviii) the Administrative Agent shall have received all documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Partiesextent that the joinder or commitment agreements described in clause (vi) above provide for an applicable margin of, if required and/or commitment fee for, additional Revolving Commitments greater than the Applicable Margin and/or Commitment Fee with respect to the existing Revolving Commitments at such time, the Applicable Margin and/or the Commitment Fee (as applicable) for the existing Revolving Commitments shall be provided by increased automatically (without the Administrative Agent or consent of Required Lenders) such that the Lenders providing Applicable Margin and/or the Commitment Fee (as applicable) for such increased existing Revolving Commitments is not less than the applicable margin and/or the commitment fee (as applicable) for such additional Revolving Commitments) relating . All other terms with respect to any additional Revolving Commitments, including, without limitation, maturity date and prepayments, shall be the same as those applicable to the corporate or other necessary authority for such increase in the Aggregate existing Revolving Commitments and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative AgentCommitments. The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of any such increase in the Revolving Commitments to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any non-ratable nonratable increase in the Revolving Commitments under this SectionSection (it being understood that any such prepayment may be funded with the proceeds of a borrowing, or deemed borrowing, of Revolving Loans).
(iiic) The Borrower may, at any time and from time With respect to time, upon prior written notice to the Administrative Agent, request the establishment of one or more additional Term Loans from existing Lenders or other Persons that would qualify as Eligible Assignees selected by the Borrower (other than the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable to the Administrative Agent; provided thatLoans:
(Ai) any such increase additional Term Loan shall be in a minimum aggregate initial principal amount of Ten Million Dollars ($10,000,000) 2,000,000 and integral multiples of Five Million Dollars ($5,000,000) 1,000,000 in excess thereof;
(Bii) no Default or Event of Default shall exist before, before and immediately after giving effect to, to any such additional Term Loan;
(Iiii) after giving effect to the incurrence of any additional Term Loan on a Pro Forma Basis (recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1, including after giving effect on a Pro Forma Basis to any Permitted Acquisition consummated simultaneously therewith and assuming that any increase in the Revolving Commitments are fully drawn), the Borrower shall be in compliance with the financial covenants set forth in Section 8.8;
(iv) no existing Lender shall be under any obligation to provide a portion of any additional Term Loan, Loan and any such decision whether to provide a portion of any additional Term Loan shall be in such Lender’s sole and absolute discretion; and
(II) the Arrangers shall have no obligation to Arrange any such increase without their written agreement to undertake such arrangement;
(I1) any new Lender shall be reasonably acceptable to the Administrative Agent and shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent; and/or
Agent and/or (II2) any existing Lender electing to provide a Term Loan Commitment with respect to such additional Term Loan shall have executed a commitment or joinder agreement reasonably satisfactory to the Administrative Agent;
(E) the Borrower shall have paid any applicable upfront and/or arrangement fees with respect to such increase;
(Fvi) the establishment of any such additional Term Loan shall be subject to receipt by the Administrative Agent of a certificate of the Borrower dated as of the date of the establishment of such additional Term Loan signed by an Authorized Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, additional Term Loan and (y) certifying that, before and after giving effect to such increase:
additional Term Loan, (I1) the representations and warranties contained in Section 6 and in each of the other Credit Documents are true and correct in all material respects on, on and as of, of the date of such additional Term Loanincrease (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case, case they are true and correct in all material respects (unless any such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects) as of such earlier date, and, and except that for purposes of this Section 2.1(d)2.18, the representations and warranties contained in Section 6.7 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) of Section 7.1;
, (II2) no Default or Event of Default exists; and
, (III3) the Borrower shall be conditions in compliance, on a Pro Forma Basis after giving effect to the incurrence of any additional Term Loan (and after giving effect, on a Pro Forma Basis, to any Permitted Acquisition consummated simultaneously therewith and assuming, for purposes of such calculation, that the Revolving Commitments Section 2.18(c)(iii) are fully drawn), with the financial covenants set forth in clauses (a) satisfied and (b4) of the conditions precedent in Section 7.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.15.2 are satisfied;
(Gvii) the Applicable Margin of any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that in the event that the all-in yield for any additional Term Loan is higher than the all-in yield for the existing Term Loans (the “Existing Term Facilities”) by more than 50 basis points, then the Applicable Margin for the applicable Existing Term Facility shall be increased to the extent necessary so that such all-in yield is equal to the all-in yield for such additional Term Loan minus 50 basis points; provided, further, that in determining the interest rate margins applicable to any additional Term Loan and the applicable Existing Term Facility, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID, with OID being equated to interest based on assumed four-year life to maturity) payable by the Borrower to the Lenders (which fees shall include, for the avoidance of doubt, the portion of any such fees paid to the Lenders from the proceeds of any underwriting fee paid to any Lead Arranger) under the applicable Existing Term Facility in the initial primary syndication thereof and with respect to any additional Term Loan shall be included and the effect of any and all interest rate floors shall be included and (y) customary arrangement or commitment fees payable to the Lead Arrangers (or their affiliates) in connection with the applicable Existing Term Facility, shall be excluded;
(viii) the maturity date for any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such maturity date shall not be earlier than the Term Loan Maturity Date or the maturity date of any other then existing Term Loan; and
(ix) the scheduled principal amortization payments (if any) under any such additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith; provided that the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arrangers or their Affiliates) applicable to such additional Term Loan shall not be more than fifty hundredths of a percent (0.50%) higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding additional Term Loan (it being understood that interest on the Term Loan A and any existing additional Term Loan may be increased to the extent necessary to satisfy this requirement);
(H) the maturity date for any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that such date shall not be earlier than the Term Loan A Maturity Date or the maturity date of any other then existing Term Loan;
(I) the scheduled principal amortization payments under any additional Term Loan shall be as set forth in the commitment or joinder agreement executed by the Borrower in connection therewith, provided that the weighted average life to maturity (as calculated by the Administrative Agent) of any such additional Term Loan shall not be less than the weighted life to maturity of the First Amendment Term Loan A and any other then existing Term Loan.
(d) the proceeds of any such increase in the Revolving Commitments or additional Term Loan shall be used to acquire additional Marina Properties or other Real Estate Assets, to pay fees and expenses related thereto, to make capital expenditures or for general corporate purposes; and
(Je) the Administrative Agent Borrower shall have received all provide legal opinions and other documents (including secretary’s certificates, resolutions of the board of directors of the Credit Parties and customary opinions of counsel to the Credit Parties, if required to be provided reasonably requested by the Administrative Agent or in writing in connection with the Lenders providing establishment of any such increase in the Revolving Commitments and/or such additional Term Loan) relating to the corporate or other necessary authority for such additional Term Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
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