Increase in the Commitments. (a) Notwithstanding any other provision of this Agreement (including Section 15.1), the Company may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit G, request that the Commitments be increased (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a “Tranche Increase”) or additional term loan tranches (each, an “Incremental Term Loan”)); provided that (i) the aggregate amount of all such increases during the term of this Agreement shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent any such prepayment thereof is accompanied by a permanent reductions of the Revolving Commitments) (clauses (x), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00, (ii) any such increase in the Commitments shall be in the amount of the Dollar Equivalent Amount of $25,000,000 or a higher integral multiple of $500,000 (or such other amount as the Administrative Agent may agree in any particular instance), (iii) the Company may make a maximum of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) is unavailable, shall be deemed incurred under the Fixed Incremental Amount. (b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender. (c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period agreed to by the Administrative Agent, the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt of the applicable increase letters in the form of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G. (d) As a condition precedent to any Tranche Increase or Incremental Term Loan: (i) the Company shall have delivered to the Administrative Agent (A) a certificate of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties of the Borrowers contained in Section 9 and of the Loan Parties in the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except (I) 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 (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4); (2) no Event of Default or Unmatured Event of Default exists; and (3) the Parent is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and (ii) opinion letters consistent with those delivered on the date of this Agreement, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days of the date of execution of the definitive documentation for such Acquisition: (A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations or, in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders; (B) the condition set forth in clauses (i)(2) above shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; (C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and (D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition. (e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche. (f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding Revolving Loans of the other Lenders (rather than fund its Percentage of all outstanding Revolving Loans concurrently with the applicable increase), in each case with a view toward minimizing breakage costs and transfers of funds in connection with any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4. (g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists on the date of such proposed increase. Except as set forth in clause (b) above, no consent of any Lender not participating in any Tranche Increase or Incremental Term Loan shall be required for any such Tranche Increase or Incremental Term Loan pursuant to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1).
Appears in 2 contracts
Samples: Credit Agreement (Middleby Corp), Credit Agreement (Middleby Corp)
Increase in the Commitments. (a) Notwithstanding any other provision of this Agreement (including Section 15.1), the Company Borrower may, from time to time, by means of a letter delivered on any Business Day prior to the Administrative Agent Revolving Credit Termination Date, request to increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form of attached hereto as Exhibit G, request that H (or in such other form reasonably acceptable to Administrative Agent) to Administrative Agent (the Commitments be increased “Revolver Increase”) identifying an additional Lender (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a “Tranche IncreaseAdditional Lender”) or additional term loan tranches Revolving Credit Commitment for an existing Lender and the amount of its Revolving Credit Commitment (each, an “Incremental Term Loan”)or additional amount of its Revolving Credit Commitment); provided that provided, however, that:
(i) the aggregate amount of all such increases during the term of this Agreement Revolver Increases shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent 75,000,000 and any such prepayment thereof is accompanied Revolver Increase shall be in an amount not less than $5,000,000 (or such lesser amount then agreed to by a permanent reductions of the Revolving Commitments) (clauses (xAdministrative Agent), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00, ;
(ii) any such increase in no Default shall have occurred and be continuing at the Commitments shall be in the amount time of the Dollar Equivalent Amount request or the effective date of $25,000,000 or a higher integral multiple of $500,000 (or such other amount as the Administrative Agent may agree in any particular instance), Revolver Increase;
(iii) the Company may make a maximum each of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) is unavailable, shall be deemed incurred under the Fixed Incremental Amount.
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period agreed to by the Administrative Agent, the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt of the applicable increase letters in the form of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.
(d) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company shall have delivered to the Administrative Agent (A) a certificate of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained set forth in Section 9 5 and of the Loan Parties in the other Loan Documents are shall be and remain true and correct in all material respects on and as of the effective date of such increaseRevolver Increase (where not already qualified by materiality, otherwise in all respects), except (I) to the extent that such representations and warranties specifically refer the same expressly relate to an earlier date, in which case they are shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date, and (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3iv) in the Parent event that all or any portion of a Revolver Increase shall be provided by an Additional Lender, Administrative Agent, in its sole discretion, shall have consented to such Additional Lender. As a condition precedent to such an increase or addition, Borrower shall deliver to Administrative Agent (x) a certificate of each Loan Party signed by an authorized officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case of Borrower, confirming that the conditions set forth in Section 2.18(i) and (ii) above have been satisfied and (C) Borrower is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
7.13 and (iiy) opinion letters legal opinions and documents consistent with those delivered on the date of this AgreementClosing Date, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days . The effective date of the date of execution of Revolver Increase shall be agreed upon by Xxxxxxxx and Administrative Agent. Upon the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations oreffectiveness thereof, in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above Schedule 1 shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of amended to reflect the date of the execution of the definitive agreement for such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Revolver Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche.
(f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender an amount sufficient such that after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding its Revolving Loans of the other Lenders (rather than fund each Lender shall have outstanding its Revolver Percentage of all outstanding Revolving Loans concurrently with outstanding under the applicable increase), in each case with Commitments. It shall be a view toward minimizing breakage costs and transfers of funds in connection with condition to such effectiveness that if any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving SOFR Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists outstanding on the date of such proposed increaseeffectiveness, such SOFR Loans shall be deemed to be prepaid on such date and Borrower shall pay any amounts owing to the Lenders pursuant to Section 3.3. Except as set forth in clause Xxxxxxxx agrees to pay the reasonable and documented expenses of Administrative Agent (bincluding reasonable and documented attorneys’ fees) aboverelating to any Revolver Increase. Notwithstanding anything herein to the contrary, no consent of Lender shall have any Lender not participating in any Tranche Increase or Incremental Term Loan obligation to increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be required for any such Tranche Increase or Incremental Term Loan pursuant increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1)increase its Revolving Credit Commitment.
Appears in 2 contracts
Samples: Credit Agreement (AlTi Global, Inc.), Credit Agreement (AlTi Global, Inc.)
Increase in the Commitments. (a) Notwithstanding any other provision of this Agreement (including Section 15.1)So long as no Default has occurred and is continuing or would arise therefrom, the Company mayBorrower shall have the right at any time, and from time to time, to request an increase of the aggregate amount of Commitments from $400,000,000 to an aggregate amount not to exceed $500,000,000. Any such requested increase shall be first made to all existing Lenders on a pro rata basis. To the extent that the existing Lenders decline to increase their Commitments, or decline to increase their Commitments to the amount requested by means of a letter delivered to the Borrower, the Administrative Agent substantially (or an Affiliate of the Administrative Agent as directed by the Administrative Agent), in consultation with the form of Exhibit GBorrower, request that the Commitments be increased (which increase may take the form of will use its reasonable efforts to arrange for other Persons to become a Lender hereunder and to issue commitments in an amount equal to increase in the Revolving Commitments, or new revolving tranches aggregate Commitments requested by the Borrower and not accepted by the existing Lenders (each such increase in Revolving Commitments or additional revolving trancheby either means, a “Tranche Commitment Increase”) ,” and each Person issuing, or additional term loan tranches (eachLender increasing, its Commitment, an “Incremental Term LoanAdditional Commitment Lender”)); provided , provided, however, that (i) the aggregate amount of all such increases during the term of this Agreement no Lender shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect be obligated to the prepayment provide a Commitment Increase as a result of any Revolving Loans, solely to such request by the extent any such prepayment thereof is accompanied by a permanent reductions of the Revolving Commitments) (clauses (x), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00Borrower, (ii) any such increase in the Commitments shall be in the amount of the Dollar Equivalent Amount of $25,000,000 or a higher integral multiple of $500,000 (or such other amount as the Administrative Agent may agree in any particular instance), (iii) the Company may make a maximum of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) Additional Commitment Lender which is unavailable, shall be deemed incurred under the Fixed Incremental Amount.
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each not an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional existing Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period agreed to by the Administrative Agent, the Company and, as applicable, each Increasing Lender Issuing Banks and each Additional Lender) after the date on Borrower (which the Administrative Agent has received and acknowledged receipt of the applicable increase letters in the form of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.
(d) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company consent shall have delivered to the Administrative Agent (A) a certificate of each Loan Party that will not be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained in Section 9 and of the Loan Parties in the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except (I) 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 (II) that for purposes of this clause (d)(iunreasonably withheld), the representations and warranties contained in subsections (a) and (b) of Section 9.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3) the Parent is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
(ii) opinion letters consistent with those delivered on the date of this Agreement, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days of the date of execution of the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations or, in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of the date of the execution of the definitive agreement for such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (but without the consent of any other Lender and (iii) each Commitment Increase shall be (unless the Administrative Agent otherwise agrees in writing) in integral multiples of $1,000,000, and not less than (x) with respect to any Additional Commitment Lender that is not an existing Lender). In , $10,000,000 or (y) with respect to any Additional Commitment Lender that is an existing Lender, an amount equal to the case positive difference (if any) of $10,000,000 less such Lender’s existing Commitment.
(b) No Commitment Increase shall become effective unless and until each of the following conditions have been satisfied:
(i) If an Additional Commitment Lender is not an existing Lender, the Additional Commitment Lender shall have executed and delivered to Administrative Agent a Tranche Increase constituting a new revolving tranche only, joinder to this Agreement shall have been amended, and the other Loan Documents specified by Administrative Agent all in such form and substance reasonably satisfactory acceptable to the Company, Administrative Agent;
(ii) Borrower shall have paid such fees and other compensation to the Additional Commitment Lenders as the Borrower and such Additional Commitment Lenders shall agree (it being understood that such fees and other compensation are in addition to the fees and other compensation referred to in Section 2.12 of this Agreement);
(iii) Borrower shall have paid such arrangement fees to the Administrative Agent (or an Affiliate of Administrative Agent as directed by Administrative Agent) as the Borrower and the Administrative Agent shall agree (it being understood that such fees are in addition to the fees and other compensation referred to in Section 2.12 of this Agreement);
(iv) Each Loan Party shall deliver to the Administrative Agent and the Lenders certificates of the Secretary or Assistant Secretary of such Person attaching a true, complete and correct copy of the resolutions of such Person authorizing the Commitment Increase and certifying that such resolution is in full force and effect, it being understood and agreed that such resolutions may be adopted at any time and provide for Commitment Increases from time to time requested;
(v) To the extent requested pursuant to Section 2.10 hereof, Borrower shall execute a Note to each Lender providing such new revolving trancheAdditional Commitment Lender, to include be in conformity with requirements of Section 2.10 hereof (with appropriate modification) to the extent necessary to reflect the new Commitment of such terms Additional Commitment Lender; and
(vi) Borrower, its Subsidiaries, and the Additional Commitment Lender shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested, including, without limitation, in the case of an Additional Commitment Lender which is a Foreign Lender, such documents as are customary for a revolving facility and required by Section 2.17 hereof to include evidence an exemption from withholding tax with respect to payments made to such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving trancheAdditional Commitment Lender.
(fc) The Administrative Agent shall promptly notify each Lender as to the Company effectiveness of each Commitment Increase (with each date of such effectiveness being referred to herein as a “Commitment Increase Date”), and at such time (i) the aggregate Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Commitment Increases, (ii) Schedule 2.01 shall be deemed modified, without further action, to reflect the revised Commitments and Applicable Percentages of the Lenders, and (iii) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect such increased aggregate Commitments (including, without limitation, Section 2.01). In connection with Commitment Increases hereunder, the Lenders and the Borrower agree that, notwithstanding anything to the contrary in this Agreement, (i) the Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Loans of certain Lenders, and obtain Loans from certain other Lenders (including the Additional Commitment Lenders), or (y) take such other actions as reasonably may be required by the Administrative Agent, in each case to the extent necessary so that all of the Lenders effectively participate in each of the outstanding Loans pro rata on the basis of their Applicable Percentages (determined after giving effect to any increase in the aggregate Commitments pursuant to this Section 6.2.2 2.04), and (ii) the Borrower shall pay to the Lenders any costs of the Commitment and Percentage of each Lender after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including type referred to in Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding Revolving Loans of the other Lenders (rather than fund its Percentage of all outstanding Revolving Loans concurrently with the applicable increase), in each case with a view toward minimizing breakage costs and transfers of funds 2.16 in connection with any repayment and/or Loans required pursuant to preceding clause (i). Without limiting the obligations of the Borrower provided for in this Section 2.04, the Administrative Agent and the Lenders agree that they will use their commercially reasonable efforts to attempt to minimize the costs of the type referred to in Section 2.16 which the Borrower would otherwise incur in connection with the implementation of an increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4aggregate Commitments.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists on the date of such proposed increase. Except as set forth in clause (b) above, no consent of any Lender not participating in any Tranche Increase or Incremental Term Loan shall be required for any such Tranche Increase or Incremental Term Loan pursuant to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1).
Appears in 2 contracts
Samples: Credit Agreement (WMS Industries Inc /De/), Credit Agreement (WMS Industries Inc /De/)
Increase in the Commitments. Borrower may, on any Business Day prior to the Commitment Termination Date and with the written consent of the Administrative Agent and the L/C Issuer (a) Notwithstanding any other provision of this Agreement (including Section 15.1such consent shall not be unreasonably withheld, conditioned or delayed), increase the Company may, from time aggregate amount of the Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit H (or in such other form reasonably acceptable to time, by means of a letter delivered the Administrative Agent) to the Administrative Agent substantially in at least five Business Days prior to the form desired effective date of Exhibit G, request that the Commitments be increased (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a (the “Tranche Revolver Increase”) identifying an additional Lender (or additional term loan tranches Commitment for an existing Lender) and the amount of its Commitment (each, an “Incremental Term Loan”)or additional amount of its Commitment); provided that provided, however, that:
(ia) the aggregate amount of all such increases during the term of this Agreement Revolver Increases shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent 25,000,000 and any such prepayment thereof is accompanied by a permanent reductions of the Revolving Commitments) (clauses (x), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Revolver Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00, (ii) any such increase in the Commitments shall be in the an amount of the Dollar Equivalent Amount of not less than $25,000,000 or a higher integral multiple of $500,000 5,000,000 (or such other lesser amount as the Administrative Agent may agree in any particular instance), (iii) the Company may make a maximum of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) is unavailable, shall be deemed incurred under the Fixed Incremental Amount.
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period then agreed to by the Administrative Agent, );
(b) no Default shall have occurred and be continuing at the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt time of the applicable increase letters in request or the form effective date of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.Revolver Increase; and
(dc) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company shall have delivered to the Administrative Agent (A) a certificate each of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained set forth in Section 9 5 and of the Loan Parties in the other Loan Documents are shall be and remain true and correct in all material respects on and as of the effective date of such increaseRevolver Increase (where not already qualified by materiality, otherwise in all respects), except (I) to the extent that such representations and warranties specifically refer the same expressly relate to an earlier date, in which case they are shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date. The effective date of the Revolver Increase shall be agreed upon by Borrower and the Administrative Agent. Upon the effectiveness thereof, and (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 Schedule 1 shall be deemed amended to refer to reflect the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3) the Parent is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
(ii) opinion letters consistent with those delivered on the date of this Agreement, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Revolver Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days of the date of execution of the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of the date of the execution of the definitive agreement for an amount sufficient such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche.
(f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender that after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding its Revolving Loans of the other Lenders (rather than fund each Lender shall have outstanding its Percentage of all outstanding Revolving Loans concurrently with outstanding under the applicable increase), in each case with Commitments. It shall be a view toward minimizing breakage costs and transfers of funds in connection with condition to such effectiveness that if any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving Eurodollar Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists outstanding on the date of such proposed increaseeffectiveness, such Eurodollar Loans shall be deemed to be prepaid on such date and Borrower shall pay any amounts owing to the Lenders pursuant to Section 3.3. Except as set forth in clause Borrower agrees to pay the reasonable and documented expenses of the Administrative Agent (bincluding reasonable and documented attorneys’ fees) aboverelating to any Revolver Increase. Notwithstanding anything herein to the contrary, no consent of Lender shall have any Lender not participating in any Tranche Increase or Incremental Term Loan obligation to increase its Commitment and no Lender’s Commitment shall be required for any such Tranche Increase or Incremental Term Loan pursuant increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1).increase its Commitment. 739016937 20664705
Appears in 1 contract
Samples: Credit Agreement (AssetMark Financial Holdings, Inc.)
Increase in the Commitments. (a) Notwithstanding any other provision of this Agreement (including Section 15.1), the Company Borrower may, from time to time, by means of a letter delivered on any Business Day prior to the Administrative Agent Revolving Credit Termination Date, request to increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form of attached hereto as Exhibit G, request that H (or in such other form reasonably acceptable to Administrative Agent) to Administrative Agent (the Commitments be increased “Revolver Increase”) identifying an additional Lender (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a “Tranche IncreaseAdditional Lender”) or additional term loan tranches Revolving Credit Commitment for an existing Lender and the amount of its Revolving Credit Commitment (each, an “Incremental Term Loan”)or additional amount of its Revolving Credit Commitment); provided that provided, however, that:
(i) the aggregate amount of all such increases during the term of this Agreement Revolver Increases shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent 75,000,000 and any such prepayment thereof is accompanied Revolver Increase shall be in an amount not less than $5,000,000 (or such lesser amount then agreed to by a permanent reductions of the Revolving Commitments) (clauses (xAdministrative Agent), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00, ;
(ii) any such increase in no Default shall have occurred and be continuing at the Commitments shall be in the amount time of the Dollar Equivalent Amount request or the effective date of $25,000,000 or a higher integral multiple of $500,000 (or such other amount as the Administrative Agent may agree in any particular instance), Revolver Increase;
(iii) the Company may make a maximum each of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) is unavailable, shall be deemed incurred under the Fixed Incremental Amount.
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period agreed to by the Administrative Agent, the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt of the applicable increase letters in the form of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.
(d) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company shall have delivered to the Administrative Agent (A) a certificate of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained set forth in Section 9 5 and of the Loan Parties in the other Loan Documents are shall be and remain true and correct in all material respects on and as of the effective date of such increaseRevolver Increase (where not already qualified by materiality, otherwise in all respects), except (I) to the extent that such representations and warranties specifically refer the same expressly relate to an earlier date, in which case they are shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date, and (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3iv) in the Parent event that all or any portion of a Revolver Increase shall be provided by an Additional Lender, the Administrative Agent, in its sole discretion, shall have consented to such Additional Lender. As a condition precedent to such an increase or addition, Borrower shall deliver to the Administrative Agent (x) a certificate of each Loan Party signed by an authorized officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case of Borrower, confirming that the conditions set forth in Section 2.18(i) and (ii) above have been satisfied and (C) Borrower is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
7.13 and (iiy) opinion letters legal opinions and documents consistent with those delivered on the date of this AgreementClosing Date, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days . The effective date of the date of execution of Revolver Increase shall be agreed upon by Xxxxxxxx and Administrative Agent. Upon the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations oreffectiveness thereof, in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above Schedule 1 shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of amended to reflect the date of the execution of the definitive agreement for such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Revolver Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche.
(f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender an amount sufficient such that after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding its Revolving Loans of the other Lenders (rather than fund each Lender shall have outstanding its Revolver Percentage of all outstanding Revolving Loans concurrently with outstanding under the applicable increase), in each case with Commitments. It shall be a view toward minimizing breakage costs and transfers of funds in connection with condition to such effectiveness that if any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving SOFR Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists outstanding on the date of such proposed increaseeffectiveness, such SOFR Loans shall be deemed to be prepaid on such date and Borrower shall pay any amounts owing to the Lenders pursuant to Section 3.3. Except as set forth in clause Xxxxxxxx agrees to pay the reasonable and documented expenses of Administrative Agent (bincluding reasonable and documented attorneys’ fees) aboverelating to any Revolver Increase. Notwithstanding anything herein to the contrary, no consent of Lender shall have any Lender not participating in any Tranche Increase or Incremental Term Loan obligation to increase its Revolving Credit Commitment and no Lender’s Revolving Credit Commitment shall be required for any such Tranche Increase or Incremental Term Loan pursuant increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1)increase its Revolving Credit Commitment.
Appears in 1 contract
Samples: Senior Secured Credit Facility (Alvarium Tiedemann Holdings, Inc.)
Increase in the Commitments. (a) Notwithstanding any other provision of this Agreement (including Section 15.1), the Company may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit G, request that the Commitments be increased (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a “Tranche Increase”) or additional term loan tranches (each, an “Incremental Term Loan”)); provided that (i) the aggregate amount of all such increases during the term of this Agreement shall not exceed the sum of (x) the greater of (a) 100% of EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements are available on a pro forma basis after given effect to such Incremental Term Loan and any applicable transaction financed with the proceeds thereof and (b) $500,000,000 625,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent any such prepayment thereof is accompanied by a permanent reductions of the Revolving Commitments) (clauses (x), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.003.00:1.00 (this clause (z) the “Incremental Incurrence Amount”), (ii) any such increase in the Commitments shall be in the amount of the Dollar Equivalent Amount of $25,000,000 or a higher integral multiple of $500,000 (or such other amount as the Administrative Agent may agree in any particular instance), (iii) the Company may make a maximum of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount At the election of any Tranche Increase or Incremental Term Loans the Company, (x) the applicable Borrower shall be deemed to have been incurred first used amounts under clause the Incremental Incurrence Amount (z) above to the extent permitted compliant therewith) prior to utilization of amounts under the Fixed Incremental Amount and then, if clause (zy) is unavailable, shall Incremental Term Loans or Tranche Increases may be deemed incurred simultaneously under the Incremental Incurrence Amount and the Fixed Incremental Amount and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Incremental Incurrence Amount above and then calculating the incurrence under the Fixed Incremental Amount (it being understood that any amounts incurred under the Fixed Incremental AmountAmount concurrently with amounts incurred under the Incremental Incurrence Amount will not count as Debt for the purposes of calculating the Secured Leverage Ratio in the Incremental Incurrence Amount at the time of such concurrent incurrence).
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period agreed to by the Administrative Agent, the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt of the applicable increase letters in the form of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.
(d) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company shall have delivered to the Administrative Agent (A) a certificate of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained in Section 9 and of the Loan Parties in the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except (I) 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 (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3) the Parent is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
(ii) opinion letters consistent with those delivered on the date of this Agreement, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days of the date of execution of the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations or, in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of the date of the execution of the definitive agreement for such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche.
(f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the outstanding Revolving Loans of the other Lenders (rather than fund its Percentage of all outstanding Revolving Loans concurrently with the applicable increase), in each case with a view toward minimizing breakage costs and transfers of funds in connection with any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists on the date of such proposed increase. Except as set forth in clause (b) above, no consent of any Lender not participating in any Tranche Increase or Incremental Term Loan shall be required for any such Tranche Increase or Incremental Term Loan pursuant to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1).
Appears in 1 contract
Samples: Credit Agreement (MIDDLEBY Corp)
Increase in the Commitments. The Borrower may, on any Business Day prior to the Termination Date and with the written consent of the Administrative Agent and the L/C Issuer (a) Notwithstanding any other provision of this Agreement (including Section 15.1such consent shall not be unreasonably withheld, conditioned or delayed), increase the Company may, from time aggregate amount of the Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to time, by means of a letter delivered the Administrative Agent) to the Administrative Agent substantially in at least five (5) Business Days prior to the form desired effective date of Exhibit G, request that the Commitments be increased (which increase may take the form of an increase in the Revolving Commitments, or new revolving tranches (each such increase in Revolving Commitments or additional revolving tranche, a (the “Tranche Revolver Increase”) identifying an additional Lender (or additional term loan tranches Commitment for an existing Lender) and the amount of its Commitment (each, an “Incremental Term Loan”)or additional amount of its Commitment); provided that provided, however, that:
(ia) the aggregate amount of all such increases during the term of this Agreement Revolver Increases shall not exceed the sum of (x) $500,000,000 plus (y) the amount of Loans voluntarily prepaid (with respect to the prepayment of any Revolving Loans, solely to the extent 25,000,000 and any such prepayment thereof is accompanied by a permanent reductions of the Revolving Commitments) (clauses (x), and (y), collectively, the “Fixed Incremental Amount”), plus (z) an unlimited amount so long as, in the case of this clause (z), the Secured Leverage Ratio, based on the most recently available quarterly or annual, as applicable, financial statements of the Parent and determined on a pro forma basis, after giving effect to such Incremental Term Loan and/or Tranche Revolver Increase as of such date (and treating each such Incremental Term Loan and/or Tranche Increase as fully drawn with the proceeds thereof not being netted in calculating the Secured Leverage Ratio except to the extent the proceeds thereof are used to permanently prepay Funded Secured Debt), would not exceed 2.75:1.00, (ii) any such increase in the Commitments shall be in the an amount of the Dollar Equivalent Amount of not less than $25,000,000 or a higher integral multiple of $500,000 5,000,000 (or such other lesser amount as the Administrative Agent may agree in any particular instance), (iii) the Company may make a maximum of 10 such requests and (iv) any such Tranche Increase or Incremental Term Loan may be denominated in Dollars or in any Alternative Currency. The amount of any Tranche Increase or Incremental Term Loans shall be deemed to have been incurred first under clause (z) above to the extent permitted and then, if clause (z) is unavailable, shall be deemed incurred under the Fixed Incremental Amount.
(b) Any Tranche Increase or Incremental Term Loan may be effected by (i) increasing the Commitment of one or more Lenders which have agreed to such increase (each an “Increasing Lender”) and/or (ii) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”; provided that each Additional Lender shall be subject to the approval of the Company and, unless the Additional Lender is an Affiliate or branch of a Lender or an Approved Fund, the Administrative Agent and, if such Additional Lender will have a Commitment to make revolving loans, the Issuing Lenders and the Swing Line Lender (such consent not to be unreasonably withheld or delayed)) with a Commitment in an amount agreed to by any such Additional Lender. For the avoidance of doubt, it is understood and agreed, that no Commitment of any Lender shall be increased pursuant to this Section 6.2.2 without the consent of such Lender.
(c) Any Tranche Increase or Incremental Term Loan shall be effective three Business Days (or such other period then agreed to by the Administrative Agent, );
(b) no Default shall have occurred and be continuing at the Company and, as applicable, each Increasing Lender and each Additional Lender) after the date on which the Administrative Agent has received and acknowledged receipt time of the applicable increase letters in request or the form effective date of Annex 1 (in the case of an Increasing Lender) or Annex 2 (in the case an Additional Lender) to Exhibit G.Revolver Increase; and
(dc) As a condition precedent to any Tranche Increase or Incremental Term Loan:
(i) the Company shall have delivered to the Administrative Agent (A) a certificate each of each Loan Party that will be a borrower under, or a guarantor of the obligations arising under, such Tranche Increase or Incremental Term Loan, signed by an authorized officer of such Loan Party, (x) certifying and attaching resolutions of such Loan Party approving or consenting to such Tranche Increase or Incremental Term Loan, and (y) certifying that, before and after giving effect to such increase or addition,
(1) the representations and warranties of the Borrowers contained set forth in Section 9 6 and of the Loan Parties in the other Loan Documents are shall be and remain true and correct in all material respects on and as of the effective date of such increaseRevolver Increase (where not already qualified by materiality, otherwise in all respects), except (I) to the extent that such representations and warranties specifically refer the same expressly relate to an earlier date, in which case they are shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date. The effective date of the Revolver Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, and (II) that for purposes of this clause (d)(i), the representations and warranties contained in subsections (a) and (b) of Section 9.4 Schedule 2.1 shall be deemed amended to refer to reflect the most recent statements furnished pursuant to Section 10.1.1 and 10.1.2 (to the extent that such financial statements are later than the financial statements delivered pursuant to Section 9.4);
(2) no Event of Default or Unmatured Event of Default exists; and
(3) the Parent is in compliance (on a pro forma basis) with the covenants contained in Section 10.6; and
(ii) opinion letters consistent with those delivered on the date of this Agreement, to the extent reasonably requested by the Administrative Agent; provided that, with respect to any Tranche Revolver Increase that constitutes a new tranche (and not an increase to an existing tranche) or Incremental Term Loan, in either case, incurred primarily to finance a Limited Condition Acquisition, so long as such Limited Condition Acquisition is consummated within 270 days of the date of execution of the definitive documentation for such Acquisition:
(A) the reference to “representations and warranties” in clause (i)(1) above shall refer only to the representations and warranties that constitute Specified Representations and the Limited Condition Acquisition Agreement Representations new Lender (or, if applicable, existing Lender) shall advance Loans in each case, other customary “SunGard” or “certain funds” representations as are agreed to by the applicable Increasing Lenders or Additional Lenders;
(B) the condition set forth in clauses (i)(2) above shall be deemed satisfied so long as no payment or bankruptcy Event of Default or Unmatured Event of Default exists as of the date of the execution of the definitive agreement for an amount sufficient such Limited Condition Acquisition;
(C) the condition set forth in clause (i)(3) above will be tested as of the date of the execution of the definitive agreement for such Limited Condition Acquisition; and
(D) any opinion letter to the extent required to be delivered pursuant to clause (ii) above will be delivered on the date of the execution of the definitive agreement for such Limited Condition Acquisition.
(e) In the case of an Incremental Term Loan only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such term loan tranche, to include such terms as are customary for a term loan facility and such economic terms, including pricing, fees, original issue discount and premiums, as the Company and each Lender providing such term loans shall agree (without the consent of any other Lender). In the case of a Tranche Increase constituting a new revolving tranche only, this Agreement shall have been amended, in form and substance reasonably satisfactory to the Company, the Administrative Agent and each Lender providing such new revolving tranche, to include such terms as are customary for a revolving facility and to include such economic terms as agreed to by the Company and each Lender providing such Tranche Increase constituting a new revolving tranche.
(f) The Administrative Agent shall promptly notify the Company and the Lenders of any increase in the Commitments pursuant to this Section 6.2.2 and of the Commitment and Percentage of each Lender that after giving effect thereto. The parties hereto agree that, notwithstanding any other provision of this Agreement (including Section 15.1), the Administrative Agent, the Company, to its Loans each Additional Lender and each Increasing Lender, as applicable, may make arrangements to stage the timing of any such increase to the then existing Revolving Commitment, or to cause an Additional Lender or an Increasing Lender to temporarily hold risk participations in the shall have outstanding Revolving Loans of the other Lenders (rather than fund its Percentage of all Loans outstanding Revolving Loans concurrently with under the applicable increase), in each case with Commitments. It shall be a view toward minimizing breakage costs and transfers of funds in connection with condition to such effectiveness that (A) if any increase in the Revolving Commitment Amount. The Company acknowledges that if, as a result of a non-pro-rata increase in the Revolving Commitment Amount, any Revolving Eurodollar Loans are prepaid or converted (in whole or in part) on a day other than the last day of an Interest Period therefor, then such prepayment or conversion shall be subject to the provisions of Section 8.4.
(g) Except as provided in clause (d) above, no increase in the Commitments may be effected if an Event of Default or an Unmatured Event of Default exists outstanding on the date of such proposed increaseeffectiveness, such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the Lenders pursuant to Section 4.5 and (B) the Borrower shall not have terminated any portion of the Commitments pursuant to Section 2.10. Except as set forth in clause The Borrower agrees to pay the reasonable and documented expenses of the Administrative Agent (bincluding reasonable and documented attorneys’ fees) aboverelating to any Revolver Increase. Notwithstanding anything herein to the contrary, no consent of Lender shall have any Lender not participating in any Tranche Increase or Incremental Term Loan obligation to increase its Commitment and no Lender’s Commitment shall be required for any such Tranche Increase or Incremental Term Loan pursuant increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to this Section 6.2 (and amendments to effect such increases may be made in accordance with Section 15.1)increase its Commitment.
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Samples: Credit Agreement (Envestnet, Inc.)