Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility. (b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. (c) In the case of each Incremental Revolving Commitment: (i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and (ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment). (d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of: (i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, (ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and (iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance). (e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments. (f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 3 contracts
Samples: Credit Agreement (Fortegra Group, LLC), Credit Agreement (Fortegra Group, LLC), Credit Agreement (Tiptree Inc.)
Increase of Commitments; Additional Lenders. (a) So long The Borrowers may increase, upon the request of the Borrower Agent, the then effective amount of the Aggregate Revolving Credit Commitment; provided that: (i) the aggregate principal amount of the increases in the Aggregate Revolving Credit Commitment pursuant to this Section 2.16, shall not exceed Three Hundred Million Dollars ($300,000,000); (ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Agent in connection with such increases and at the time of any such proposed increase; (iii) subject to customary “Sungard” provisions, if and to the extent agreed to by the Increasing Lenders, (A) no Default or Event of Default has shall have occurred and is continuingbe continuing or would occur after giving effect to such increase, from time to time after and (B) all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the Restatement Effective DateLoan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the Borrowers maydate of such increase or, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such notice to earlier date; and (iv) the Incremental Revolving Credit Commitments provided under this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date.
(b) The Agent shall invite each Lender), propose Lender to increase the Aggregate principal amount of its Revolving Credit Commitment, on a pro rata basis, in connection with the proposed Incremental Revolving Credit Commitments at the interest margin proposed by the Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then the Agent or the Borrowers may invite any prospective lender who is reasonably satisfactory to the Agent to become a Lender (each such new lender being an “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Lender”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 ) in the aggregate over the term of accordance with this AgreementSection 2.16. No Lender shall have any obligation obligation, express or implied, to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lender agreeing to increase their Revolving Credit Commitments (the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Lenders) to extend Revolving Credit Commitments, as applicable, as a result thereof without such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed’s consent.
(c) In Subject to subsections (a) and (b) of this Section 2.16, any increase requested by the case Borrowers shall be effective upon delivery to the Agent of each Incremental Revolving Commitment:
of the following documents (the date of such effectiveness, the “Increase Date”): (i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than an originally executed copy of any initial upfront fees paid to the instrument of joinder signed by a duly authorized officer of each Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder Lender, in form and substance reasonably satisfactory acceptable to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
Agent; (ii) evidence of appropriate corporate authorization on a notice to the part Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to the Agent, signed by a Responsible Officer of the Borrowers with respect to the Incremental Facility, and
Borrower Agent; (iii) a certificate of the Borrower Agent signed by a Responsible Officer Officer, in form and substance acceptable to the Agent, certifying that each of the Borrowers conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that the Agent shall request, each in form and substance satisfactory to the effect that Agent.
(Ad) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect Anything to the incurrence of contrary contained herein notwithstanding, if the Incremental Facility and (B) after giving effect All-In Yield that is to such increase and be applicable to the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings Revolving Credit Loans to be made on the date that pursuant to the Incremental Facility becomes effectiveRevolving Credit Commitments is higher than the All-In Yield applicable to the Revolving Credit Loans hereunder immediately prior to the Increase Date (the amount by which the All-In Yield is higher, and deeming any Incremental the “Excess”), then the interest margin applicable to the Revolving Commitment Credit Loans immediately prior to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Increase Date shall automatically be increased by the amount of the Incremental Excess minus 0.50 percentage points (to the extent that the result is positive), subject to the occurrence of and effective upon the Increase Date, and without the necessity of any action by any party hereto.
(e) Each of the Lenders having a Revolving Commitments added through Credit Commitment prior to the Increase Date (the “Pre-Increase Revolving Credit Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Date (the “Post-Increase Revolving Credit Lenders”), and such agreement Post-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount thereof, such interests in the Revolving Credit Loans and (ii) Schedule I participation interests in Swingline Loans and undrawn Letters of Credit on such Increase Date as shall automatically be deemed amended to reflect the Commitments of all Lenders necessary in order that, after giving effect to the addition all such assignments and purchases, such Revolving Credit Loans and participation interests in Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in accordance with their Pro Rata Shares after giving effect to such increased Revolving Credit Commitments.
(f) Each supplement or joinder agreement referred to Unless otherwise specifically provided herein, all references in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the any other Loan Documents as may Document to Revolving Credit Loans shall be necessarydeemed, in unless the reasonable opinion of the Administrative Agent and the Borrowerscontext otherwise requires, to effect include Revolving Credit Loans made pursuant to the provision of Incremental Revolving Credit Commitments pursuant to this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary2.16.
Appears in 3 contracts
Samples: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers The Borrower may, upon at least ten 10 days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Revolving Term Loan Commitment” or ”) to make an incremental term loan (any such incremental term loan, an “Incremental FacilityTerm Loan”); provided , by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the aggregate increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of all Incremental Revolving Commitments any such increase or incremental term loan commitment (which shall not exceed be in minimum increments of $50,000,000 in 10,000,000), the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility“Additional Commitment Amount”).
(b) The Borrowers In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Facility Term Loan Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facilitybecome a party to this Agreement, if not already a Lender; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed.
. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) In plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of each Incremental a request to increase the Aggregate Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment)Commitments.
(d) An Incremental No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.22 2.24 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Revolving Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental FacilityTerm Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a certificate condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a Responsible Officer breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the Borrowers failure of such representations or warranties to be true and correct or to satisfy the effect that (A) the closing conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect such Limited Condition Acquisition Agreement applicable to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliancerepresentations or warranties).
(ef) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(fg) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in clause (d)(i) above may, without the consent case of any other Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such amendments Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents as Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be necessarysubordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the reasonable opinion of extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the BorrowersAdditional Lenders or such other Lenders, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryin each case who are providing such Incremental Term Loan Commitment.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective DateClosing Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrowers mayBorrower may from time to time, upon at least ten daysfive (5) Business Days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment” ”) or to increase any existing Term Loan or establish one or more new additional term loans (each, an “Incremental FacilityTerm Loan”); provided that provided, that: the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not exceed $50,000,000 in the aggregate over Maximum Incremental Facility Amount immediately after giving effect to the term establishment of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate Revolving Commitment or Incremental Term Loan; any Incremental Revolving Commitment or establishment of an Incremental Term Loan shall be in a bank minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof; no Default or other financial institution (which may be, but need not be, one or more Event of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which Default shall exist and be continuing at the time agrees of the establishment of any Incremental Revolving Commitment or Incremental Term Loan; the conditions set forth in Section 3.2 shall be satisfied as of the date of the establishment of any Incremental Revolving Commitment or Incremental Term Loan; the Borrower shall have provided to extend such Incremental Facility; provided howeverthe Administrative Agent a Pro Forma Compliance Certificate, that any new bank or financial institution must be in form and detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In demonstrating compliance with the case of each Incremental Revolving Commitment:
(i) financial covenants in Article VI after giving effect to such Incremental Revolving Commitment shall have or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, that the same terms as the existing Aggregate Revolving Commitments (other than including any initial upfront fees paid Incremental Revolving Commitments) are fully drawn and funded); provided, that, in the case of an Incremental Term Loan subject to the Additional Lenders extending Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into; the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share Commitments or such establishment of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make Term Loan, all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.;
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) except to the extent any such representation or warranty is continuingstated to relate solely to an earlier date, from time in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(iv) the MLP and its Restricted Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to time after have been delivered, calculated as if any Borrowing made on the Restatement Effective Date, date such Incremental Commitments are established had been funded as of the Borrowers may, upon first day of the relevant period for testing compliance;
(v) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(vi) all terms and conditions with respect to any such Incremental Commitments shall be the same as those contained in the Loan Documents or otherwise reasonably satisfactory to the Administrative Agent; provided that any upfront fees paid with respect to such Incremental Commitments may be greater than the upfront fees paid with respect to the existing Revolving Commitments.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders that agree to increase the Aggregate principal amount of their Revolving Commitments (an the “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Increasing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at fees may be variable based upon the time agrees amount by which any such Lender is willing to extend increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Commitments, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred to in clause (d)(i) above mayIf the Borrower incurs Incremental Commitments under this Section, without the consent of any other LendersBorrower shall, effect after such amendments to this Agreement time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the other Loan Documents as may be necessaryRevolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Arc Logistics Partners LP), Revolving Credit Agreement (Arc Logistics Partners LP)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an additional $100,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.23, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I III shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Commitments.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp), Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 in (the aggregate over amount of any such increase, the term “Additional Commitment Amount”). Each Lender shall have the right for a period of this Agreement15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.23, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of in-house counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Newmarket Corp), Revolving Credit Agreement (Newmarket Corp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective DateDate but before the termination of this Agreement and in accordance with this Section 2.25, the Borrowers mayBorrower may from time to time, upon at least ten daysfive (5) Business Days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment” ”) or to establish one or more new additional term loans (each, an “Incremental FacilityTerm Loan”); provided that provided, that:
(i) the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not exceed $50,000,000 in the aggregate over Maximum Incremental Facility Amount during the term of this Agreement. No Lender shall have any obligation to extend ;
(ii) any Incremental Facility.Revolving Commitment or establishment of an Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof;
(biii) The Borrowers may designate a bank no Default or other financial institution (which may be, but need not be, one or more Event of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which Default shall exist and be continuing at the time agrees of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(iv) the conditions set forth in Section 3.2 shall be satisfied as of the date of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(v) the Borrower shall have provided to extend such Incremental Facility; provided howeverthe Administrative Agent a Pro Forma Compliance Certificate, that any new bank or financial institution must be in form an detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In demonstrating compliance with the case of each Incremental Revolving Commitment:
(i) financial covenants in Article VI after giving effect to such Incremental Revolving Commitment shall have or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, that the same terms as the existing Aggregate Revolving Commitments (other than including any initial upfront fees paid Incremental Revolving Commitments) are fully drawn and funded); provided, that, in the case of an Incremental Term Loan subject to the Additional Lenders extending Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into (but not more than ninety (90) days prior to the consummation of such Permitted Acquisition or such later date as Administrative Agent may agree in writing);
(vi) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share Commitments or such establishment of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make Term Loan, all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Agent;
(vii) the Applicable Margin of each Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that (A) if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the Borrowers difference between the Initial Yield and by each Additional Lender setting forth the Existing Yield, and (B) any Incremental Term Loans made pursuant to this Section 2.25 shall have a maturity date no earlier than the latest existing Maturity Date or the then applicable Revolving Commitment Termination Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loan A or any other then-existing Incremental Term Loan;
(viii) any Incremental Revolving Commitments under this Section 2.25 shall have terms identical to those for the Revolving Commitments under this Agreement, other than with respect to the payment of such Lenders Up-Front Fees;
(ix) no Lender shall have any obligation to provide any Incremental Revolving Commitment or any Incremental Term Loan, and setting forth the agreement of each Additional any decision by a Lender to become provide any Incremental Revolving Commitment or any Incremental Term Loan shall be made in its sole discretion independently from any other Lender;
(x) the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any Incremental Revolving Commitments or an Incremental Term Loan, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to be bound the Administrative Agent that has been executed by all the terms Borrower and provisions hereof,
such Additional Lender, (ii) evidence of appropriate corporate authorization on any such Person proposed by the part Borrower to become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Borrowers with respect to Issuing Bank and the Incremental Facility, andSwingline Lender.
(iiixi) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment Commitments or establishment of an Incremental Term Loan shall be pursuant to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such a commitment agreement, joinder agreement by or other document in form and substance reasonably acceptable to the Administrative Agent, (i) and upon the Aggregate Revolving Commitment Amount effectiveness of such commitment agreement, joinder agreement or other document pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Incremental Revolving Commitments added through such commitment agreement, joinder agreement or other document and (iiSchedule 1.1(a) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments;
(xii) with respect to any Incremental Revolving Commitments, (i) if any Revolving Loans are outstanding upon giving effect to any Incremental Revolving Commitments, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.20) in an amount necessary such that after giving effect to such Incremental Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans and (ii) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments;
(xiii) the Borrower shall pay any applicable upfront or arrangement fees in connection with such Incremental Revolving Commitments or Incremental Term Loan;
(xiv) subject to the limitations set forth in Section 2.25(a)(vii), the amortization, the pricing and the use of proceeds applicable to any such Incremental Term Loan shall in each case be set forth in the definitive documentation with respect to such Incremental Term Loan; and
(xv) all other terms and conditions with respect to any such Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender.
(fb) Each supplement Upon the effectiveness of any such Incremental Revolving Commitment or joinder agreement referred any Incremental Term Loan, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule 1.1(a) shall automatically be deemed amended accordingly.
(c) Notwithstanding anything to the contrary in clause this Section 2.25, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on the Borrower or any of its Subsidiaries, entered into in advance of the consummation thereof that does not provide for a “financing out” (d)(i) above an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan may, without at the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion option of the Administrative Agent Borrower, be limited as follows: (A) the condition set forth in Section 3.2(b) shall apply only with respect to Specified Representations, (B) all representations and the Borrowers, to effect the provision warranties of this Section 2.22, and each Loan Party (excluding for the avoidance of doubt, this Section 2.22 shall supersede doubt any provisions of Sections 2.20 target entities or 11.2 subsidiaries thereof to be acquired in connection with any Permitted Acquisition) set forth in the contrary.Loan Documents
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Aaron's Inc)
Increase of Commitments; Additional Lenders. (a) So Subject to the terms and conditions of this Section 2.24, and so long as no Default or Event of Default has occurred and is continuing, the Borrower may, by written notice to the Administrative Agent from time to time after time, request an increase in the Restatement Effective DateAggregate Revolving Commitments by an amount not to exceed $125,000,000 in the aggregate (the amount of any such increase, the Borrowers may, upon at least ten days’ written “Additional Commitment Amount”). Such notice shall set forth (i) the amount of the Additional Commitment Amount being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000) and (ii) the date on which the Additional Commitment Amount is requested to become effective (which shall not be less than 15 Business Days (or such shorter period of time as the Administrative Agent may agree agree) nor more than 60 days after the date of such notice).
(b) For a period of ten Business Days following receipt of such notice, each Revolving Loan Lender shall have the right to in its sole discretion) elect by written notice to the Borrower and the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(bc) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement, if not already a Revolving Loan Lender; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed.
(c) In . The sum of the case increases in the Revolving Commitments of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments (other than any initial upfront fees paid to of the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) shall not in the outstanding Revolving Loans and aggregate exceed the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the unsubscribed amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such CommitmentsAdditional Commitment Amount.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed $200,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); , provided that (i) any new lenders are approved by the aggregate Administrative Agent and the Lead Arrangers (such approval not to be unreasonably withheld), (ii) no Commitment of any Lender shall be increased without the consent of such Lender, and (iii) the Borrower is in compliance with Section 3.2, Article IV, Article V, Article VI, Article VII and Section 8.1. Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment.
(b) The Borrowers Borrower may also designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative AgentAgent and the Co-Syndication Agents, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent and the Co-Syndication Agents executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) hereof and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of Administrative Agent or any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Co-Syndication Agents may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 2 contracts
Samples: Revolving Credit Agreement (International Speedway Corp), Revolving Credit Agreement (International Speedway Corp)
Increase of Commitments; Additional Lenders. (a) So long as Provided there exists no Default or Event of Default has occurred and is continuingDefault, upon notice to the Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request an increase in the Total Commitment by an amount not exceeding $20,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $5,000,000 and (ii) any increase will permanently reduce the amount available under this provision. At the time after the Restatement Effective Dateof sending such notice, the Borrowers may, upon at least Borrower (in consultation with the Agent) shall specify the time period within which each Lender or any potential Lenders are requested to respond (which shall in no event be less than ten days’ written notice (or such shorter period 10) Business Days from the date of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy delivery of such notice to each Lenderthe Lenders and potential Lenders), propose . Each Lender shall notify the Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. Any Lender increasing its Commitment is referred to as an "Increasing Lender". The Agent shall notify the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that Borrower and each Lender of the aggregate Lenders' responses to each request made hereunder. To achieve the full amount of all Incremental Revolving Commitments shall not exceed $50,000,000 a requested increase and subject to the approval of the Agent and the other Lenders, the Borrower or Agent (with the approval of Borrower) may also invite additional financial institutions (each an "Additional Lender") to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityAgent and its counsel.
(b) If the Total Commitment is increased in accordance with this Section, the Agent and the Borrower shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase. The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more Agent shall promptly notify the Borrower and the Lenders of the existing Lenders) to extend final allocation of such Incremental Facility (each, an “Additional Lender”), which at increase and the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayedIncrease Effective Date.
(c) In As a condition precedent to such increase, the case Borrower shall deliver to the Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Incremental Revolving Commitment:
Lender) signed by an Authorized Officer of Borrower (i) certifying and attaching the resolutions adopted by Borrower approving or consenting to such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
increase and borrowing from a particular Lender, and (ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facilitycertifying that, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agentincrease, (iA) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement representations and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to warranties contained in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement Article 4 and the other Loan Documents are true and correct on and as may be necessaryof the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in the reasonable opinion which case they are true and correct as of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22such earlier date, and for (B) no Default nor Event of Default exists. The Borrower shall prepay any Loans outstanding on the avoidance of doubt, Increase Effective Date (and pay any prepayment fees required) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.
(d) This Section 2.22 shall supersede any provisions of in Sections 2.20 or 11.2 8.3(b) and 8.10 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Owens Realty Mortgage, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that the Borrower shall have received all consents, the Borrowers approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $300,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving . All Additional Commitments shall not exceed $50,000,000 in have the aggregate over same terms and conditions applicable to the term Commitments established on the Closing Date, including without limitation, as to yield, maturity and amortization. Each Lender shall have the right, for a period of this Agreement20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (Committed Amount by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall incremental commitments not to exceed $50,000,000 in 200,000,000 (the aggregate over amount of any such increase, the term “Additional Commitment Amount”), through the addition of this Agreementnew lenders (or increases of commitments by existing Lenders), provided that any such new lenders are reasonably acceptable to the Agent, the Syndication Agent, and the Borrower. Each Lender shall have the right for a period of 10 days following receipt of such notice, to elect by written notice to the Borrower and the Agent to increase its Revolving Commitment by a principal amount up to its Revolving Commitment Percentage of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.3, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.3 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Committed Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (iiSchedule 2.1(a) Schedule I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.3 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Prime Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article 5, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 2 contracts
Samples: Credit Agreement (Journal Communications Inc), Credit Agreement (Journal Communications Inc)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to request incremental term loans hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $300,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2020, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the existing Term Loans and is continuingIncremental Term Loans and (2) have no amortization or otherwise be permitted to be prepaid prior to the latest existing Maturity Date of any Term Loans or any tranche of Incremental Term Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, from time calculated as if all such Incremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Term Loans and any existing Incremental Term Loans, (ii) shall be equally and ratably secured with the Term Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event, not more favorably than) the Term Loans and any existing Incremental Term Loans; and
(vii) all other terms and conditions with respect to time after any such Incremental Commitments shall be reasonably satisfactory to the Restatement Effective Date, the Borrowers may, upon Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to increase those Lenders (the Aggregate Revolving Commitments (an “Increasing Lenders”) that agree to provide Incremental Revolving Commitment” or an “Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to provide Incremental Facility”); provided that Term Loans. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the aggregate Borrower and the Administrative Agent the amount of all such proposed Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementCommitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation obligation, express or implied, to extend offer to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Facility.
(b) Term Loans shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for the Incremental Term Loans, as applicable, pursuant to this Section. No Lender which declines to provide Incremental Term Loans may be replaced with respect to its existing Term Loans and/or its Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide Incremental Term Loans, as applicable. The Borrowers Borrower may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of all Incremental Term Loans of the Increasing Lenders plus the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the any new Incremental Revolving Commitments Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in paragraph (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Term Loans, as applicable, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement If any Incremental Term Loans are to have terms that are different from the existing Term Loans or joinder the Term Loan Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Borrower, without the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Term Loans and the other Loan Documents as may Administrative Agent, the execution and delivery of which agreement shall be necessarya condition to the effectiveness of the Non-Conforming Credit Extensions. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent and is expressly permitted to amend the Borrowers, Loan Documents to the extent necessary to give effect the provision of to any increase pursuant to this Section 2.22, and for the avoidance mechanical changes necessary or advisable in connection therewith (including amendments to ensure pro rata allocations of doubt, SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarySection).
Appears in 2 contracts
Samples: Term Loan Agreement (Sila Realty Trust, Inc.), Term Loan Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments to an amount not to exceed $350,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will . The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not be unreasonably withheld or delayedin the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Tc Pipelines Lp), Revolving Credit Agreement (Northern Border Pipeline Co)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after The Borrower shall have the Restatement Effective Date, the Borrowers mayright, upon at least ten daysfive (5) Business Days’ written notice (or such shorter period of time as to the Administrative Agent may agree Agent, to add one or more Eligible Banks as new Lenders hereunder, or to increase the Commitment of any existing Lender with such existing Lender’s consent, pursuant to the terms hereof (any such addition of a new Lender or increase in its sole discretionthe Commitment of an existing Lender upon the request of the Borrower pursuant to this Section 2.03(d) being referred to as a “Lender Addition”); provided that (i) each such proposed Lender, in the case of an Eligible Bank not already a Lender hereunder, is acceptable to the Administrative Agent (who shall promptly provide a copy the consent of such notice the Administrative Agent not to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”be unreasonably withheld); provided that (ii) the aggregate amount of all Incremental Revolving increases to the Commitments made pursuant to this Section 2.03(d) on any Business Day shall be equal to or greater than $25,000,000 in the aggregate; and (iii) the amount of all increases to the Commitments made pursuant to this Section 2.03(d) during the term of this Agreement shall not exceed $50,000,000 250,000,000 in the aggregate over aggregate. Each notice of a proposed Lender Addition (a “Notice of Lender Addition”) shall be by telecopy, confirmed immediately in writing, in substantially the term form of Exhibit K hereto, specifying therein (i) the name and address of the proposed Added Lender, (ii) the date on which the Borrower wishes such Lender Addition to become effective, and (iii) the amount of the Commitment such Added Lender would have hereunder after giving effect to such Lender Addition. If the conditions set forth in the proviso contained in the first sentence of this AgreementSection 2.03(d) have been satisfied, the Administrative Agent shall forward to such Added Lender and the Borrower for execution by such Added Lender and the Borrower an Assumption and Acceptance. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may beAdded Bank shall, but need not beupon such execution, one or more of return the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable executed Assumption and Acceptance to the Administrative Agent, which for the Administrative Agent’s acceptance will not be unreasonably withheld or delayed.
thereof. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assumption and Acceptance, the Added Lender shall, in addition to the rights and obligations hereunder held by it immediately prior to such effective date (c) In if any), have the rights and obligations hereunder that have been assumed by it pursuant to such Assumption and Acceptance and, in the case of an Eligible Bank not previously a Lender hereunder, shall become a Lender hereunder. By executing and delivering an Assumption and Acceptance, each Incremental Revolving Commitment:
Added Lender confirms to and agrees with each party hereto as follows: (i) such Incremental Revolving Commitment shall have neither the same terms as Administrative Agent nor any Lender makes any representation or warranty, nor assumes any responsibility with respect to, any statements, warranties or representations made in or in connection with this Agreement or the existing Revolving Commitments (execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment)instrument or document furnished pursuant hereto; and
and (ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by neither the Administrative Agent on nor any Lender makes any representation or warranty, nor assumes any responsibility with respect to, the applicable increase effective date among financial condition of the Revolving Lenders (including Borrower or the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto. Upon its receipt of an Assumption and Acceptance executed by an Added Lender and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by Borrower, the Administrative Agent of:
shall, if such Assumption and Acceptance has been completed and is in substantially the form of Exhibit L hereto, (i) a supplement or joinder in form accept such Assumption and substance reasonably satisfactory Acceptance, and (ii) give prompt notice thereof to the Borrower. If requested by an Added Lender, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent executed by a new Promissory Note or Promissory Notes to the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments order of such Lenders and setting forth Added Lender in accordance with Section 3.01(c). Such new Promissory Note or Promissory Notes shall be dated the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the effective date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such CommitmentsAssumption and Acceptance.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement (Consumers Energy Co), Credit Agreement (CMS Energy Corp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective DateFunding Availability Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrowers mayBorrower may from time to time, upon at least ten daysfive (5) Business Days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment” ”) or to establish one or more term loans (each, an “Incremental FacilityTerm Loan”); provided that provided, that:
(i) the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not exceed $50,000,000 in the aggregate over Maximum Incremental Facility Amount during the term of this Agreement. No Lender shall have any obligation to extend ;
(ii) any Incremental Facility.Revolving Commitment or establishment of an Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof;
(biii) The Borrowers may designate a bank no Default or other financial institution (which may be, but need not be, one or more Event of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which Default shall exist and be continuing at the time agrees of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(iv) the conditions set forth in Section 3.3 shall be satisfied as of the date of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(v) the Borrower shall have provided to extend such Incremental Facility; provided howeverthe Administrative Agent a Pro Forma Compliance Certificate, that any new bank or financial institution must be in form and detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In demonstrating compliance with the case of each Incremental Revolving Commitment:
(i) financial covenants in Article VI after giving effect to such Incremental Revolving Commitment shall have or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, that the same terms as the existing Aggregate Revolving Commitments (other than including any initial upfront fees paid Incremental Revolving Commitments) are fully drawn and funded); provided, that, in the case of an Incremental Term Loan subject to the Additional Lenders extending Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into (but not more than ninety (90) days prior to the consummation of such Permitted Acquisition or such later date as Administrative Agent may agree in writing);
(vi) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share Commitments or such establishment of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make Term Loan, all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Agent;
(vii) (A) the Applicable Margin of each Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of any then existing Term Loans (the “Existing Yield”), then the Applicable Margin of any then existing Term Loans shall increase by an amount equal to the Borrowers difference between the Initial Yield and by each Additional Lender setting forth the Existing Yield, and (B) any Incremental Term Loans made pursuant to this Section 2.25 shall have a maturity date no earlier than the latest existing Maturity Date or the then applicable Revolving Commitment Termination Date and shall have a Weighted Average Life to Maturity no shorter than any other then-existing Incremental Term Loan;
(viii) any Incremental Revolving Commitments under this Section 2.25 shall have terms identical to those for the Revolving Commitments under this Agreement, other than with respect to the payment of such Lenders Up-Front Fees;
(ix) no Lender shall have any obligation to provide any Incremental Revolving Commitment or any Incremental Term Loan, and setting forth the agreement of each Additional any decision by a Lender to become provide any Incremental Revolving Commitment or any Incremental Term Loan shall be made in its sole discretion independently from any other Lender;
(x) the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any Incremental Revolving Commitments or an Incremental Term Loan, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to be bound the Administrative Agent that has been executed by all the terms Borrower and provisions hereof,
such Additional Lender, (ii) evidence of appropriate corporate authorization on any such Person proposed by the part Borrower to become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Borrowers with respect to Issuing Banks and the Incremental Facility, andSwingline Lender;
(iiixi) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment Commitments or establishment of an Incremental Term Loan shall be pursuant to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such an agreement in writing entered into by the Loan Parties, the Administrative AgentAgent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Revolving Commitments or Incremental Term Loan, as applicable (i) each an “Incremental Facility Amendment”), and upon the Aggregate Revolving Commitment Amount effectiveness of such Incremental Facility Amendment pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement Incremental Facility Amendment and (iiSchedule 1.1(a) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments;
(xii) with respect to any Incremental Revolving Commitments, (i) if any Revolving Loans are outstanding upon giving effect to any Incremental Revolving Commitments, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.20) in an amount necessary such that after giving effect to such Incremental Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans and (ii) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments;
(xiii) the Borrower shall pay any applicable upfront or arrangement fees in connection with such Incremental Revolving Commitments or Incremental Term Loan;
(xiv) subject to the limitations set forth in Section 2.25(a)(vii), the amortization or other repayment requirements, the pricing and the use of proceeds applicable to any such Incremental Term Loan shall in each case be set forth in the definitive documentation with respect to such Incremental Term Loan;
(xv) any such Incremental Revolving Commitment or Incremental Term Loan shall (A) rank pari passu in right of payment as the other Loans and Commitments, (B) not be guaranteed by any Person that is not a Guarantor, and (C) if the Trigger Event has not occurred, shall be unsecured and, if the Trigger Event has occurred, shall be secured by the Collateral on a pari passu basis with the existing Obligations;
(xvi) all other terms and conditions with respect to any such Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender; and
(xvii) all other terms and conditions with respect to any such Incremental Term Loan shall be set forth in the applicable Incremental Facility Amendment and be reasonably satisfactory to the Lenders providing such Incremental Term Loan.
(fb) Each supplement Upon the effectiveness of any such Incremental Revolving Commitment or joinder agreement any Incremental Term Loan, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule 1.1(a) shall automatically be deemed amended accordingly.
(c) Notwithstanding anything to the contrary in this Section 2.25, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on Holdings, the Borrower or any of its Restricted Subsidiaries, entered into in advance of the consummation thereof that does not provide for a “financing out” (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan may, at the option of the Borrower, be limited as follows: (A) the condition set forth in Section 3.3(b) shall apply only with respect to Specified Representations, (B) all representations and warranties of each Loan Party (excluding for the avoidance of doubt any target entities or subsidiaries thereof to be acquired in connection with any Permitted Acquisition) set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) at the date the applicable Acquisition Agreement is executed and delivered; provided, that to the extent such representation or warranty relates to a specific prior date, such representation or warranty shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) only as of such specific prior date; (C) the representations and warranties in the Acquisition Agreement made by or with respect to the Person or assets subject to the Permitted Acquisition that are material to the interests of the Lenders shall be true and correct in all material respects, but only to the extent that Holdings, the Borrower and/or any of its Restricted Subsidiaries, as applicable, has the right to terminate its or their obligations under the Acquisition Agreement or not consummate such Permitted Acquisition as a result of a breach of such representations in such Acquisition Agreement and (D) the reference to “no Default or Event of Default” in Section 3.3(a) shall mean (1) the absence of a Default or Event of Default at the date the applicable Acquisition Agreement is executed and delivered and (2) the absence of a Specified Event of Default at the date the applicable Permitted Acquisition is consummated. For purposes of clarity, the establishment of Incremental Revolving Commitments shall not be subject at any time to the Incremental Funds Certain Provision. Nothing in the foregoing constitutes a waiver of any Default or Event of Default under this Agreement or of any rights or remedies of Lenders and the Administrative Agent under any provision of the Loan Documents. The provisions of this paragraph are collectively referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement as the “Incremental Funds Certain Provision”. For purposes of determining compliance on a Pro Forma Basis with the financial covenants in Article VI or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and is continuing, in each case in connection with the consummation of an Acquisition using proceeds from an Incremental Term Loan that qualifies to be subject to the Incremental Funds Certain Provision, the date of determination shall, at the option of the Borrower, be (A) the date of funding of such Incremental Term Loan, or (B) the date of execution of such Acquisition Agreement, and such determination shall be made after giving effect to such Acquisition (and the other Loan Documents as may transactions to be necessaryentered into in connection therewith, in the reasonable opinion including any incurrence of the Administrative Agent Indebtedness and the Borrowersuse of proceeds thereof) on a Pro Forma Basis, to effect the provision of this Section 2.22and, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions if such financial covenants or other ratio requirement is subsequently breached as a result of Sections 2.20 fluctuations in the ratio that is subject of such financial covenants or 11.2 other ratio requirement (including due to fluctuations in Consolidated EBITDA of Holdings, the Borrower and its Restricted Subsidiaries on a consolidated basis or the EBITDA (calculated in a manner consistent with the calculation of Consolidated EBITDA) of the acquired Person or assets), at or prior to the contraryconsummation of such Acquisition (and the other transactions to be entered into in connection therewith), such financial covenants or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided; that (x) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), (I) the Incremental Term Loan to be incurred shall be deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition, in which case such Acquisition and related Incremental Term Loan will not be treated as having occurred) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable financial covenants or other ratio requirement in this Agreement (even if unrelated to determining whether such Acquisition is a Permitted Acquisition) and (II) such Permitted Acquisition must close within ninety (90) days (or such later date as Administrative Agent may agree in writing) of the signing of the applicable Acquisition Agreement and (y) EBITDA (calculated in a manner consistent with the calculation of Consolidated EBITDA) of the acquired business shall be disregarded for all purposes under this Agreement other than determining whether such Acquisition is a Permitted Acquisition until the consummation of such Permitted Acquisition.
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that (a) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of the Borrowers Borrower set forth in the Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2023, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $250,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . All Additional Commitment Amounts shall have the aggregate same terms and conditions applicable to the Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in equal to the aggregate over Additional Commitment Amount, subject to allocations agreed by the term of this AgreementBorrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”)) to become a party to this Agreement; provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any SOFR Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the provision of Lenders in proportion to their respective Commitments after giving effect to such increase. Prepayments made under this Section 2.22, and for the avoidance of doubt, this Section 2.22 2.21(e) shall supersede any provisions of Sections 2.20 or 11.2 not be subject to the contrarynotice requirements of Section 2.9.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Increase of Commitments; Additional Lenders. (a) So long as (i) no Default or Event of Default has occurred and is continuingcontinuing or would result therefrom and (ii) the representations and warranties in the Loan Documents will be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Additional Commitment Amount (except to the extent that such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), then from time to time after the Restatement Effective Date, the Borrowers Borrower may, upon at least ten fifteen (15) days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose to increase the Aggregate Revolving Commitments (a “Revolving Commitment Increase”) or to establish one or more new additional term loans and/or increase an existing Class of Term Loans (each, an “Incremental Revolving Commitment” or Term Loan”) by an “amount not to exceed the Incremental Facility”); provided that Amount (the aggregate amount of all any such increase or the principal amount of any such Incremental Revolving Commitments shall not exceed Term Loan, the “Additional Commitment Amount”) and in a minimum amount of at least $50,000,000 in 2,000,000 or a larger multiple of $500,000. For the aggregate over the term avoidance of this Agreement. No doubt, no Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide any Incremental FacilityTerm Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers allocations with respect to any Revolving Commitment Increase or any Incremental Term Loan shall be determined by the Borrower. The Borrower may designate a any bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and/or provide an Incremental Facility Term Loan Commitment, as applicable, and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative AgentAgent and, which acceptance will in the case of an increase in the Aggregate Revolving Commitments, the Swingline Lender and Issuing Bank, in each case, to the extent required by Section 11.4. The sum of the increases in the Revolving Commitments and/or the principal amount of Incremental Term Loans of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments and/or the principal amount of Incremental Term Loans of the Additional Lenders shall not be unreasonably withheld or delayedin the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In With respect to any Incremental Term Loan that is in the case form of each Incremental Revolving Commitment:
a new Class of Term Loans, (i) any such Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory and voluntary repayments or prepayments of any other Term Loans, (ii) such Incremental Term Loan shall rank pari passu in right of payment and security with the Term Loans, be secured by the same Liens on the Collateral (with the same ranking in priority) that secure the Term Loans and benefit from the same Guarantee as the Term Loans (and not be secured by any other Liens or benefit from any other Guarantee), (iii) the final maturity date shall be no earlier than the latest Maturity Date for any then existing Term Loan, (iv) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then existing Term Loan, (v) if the interest rate margins for any such Incremental Term Loans are higher than the interest rate margins for the then existing Term Loans by more than 50 basis points (0.50%), then the interest rate margins for the then existing Term Loans shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term Loan minus 50 basis points; provided that, in determining the interest rate margins applicable to such Incremental Term Loan and the existing Term Loans, (w) any prepayment premiums, arrangement, commitment, structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or other fees that are not generally paid ratably to all lenders providing such Indebtedness or to one or more arrangers (or their affiliates) of such Indebtedness shall be excluded, (x) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID or upfront fees being equated to interest based on assumed four-year life to maturity), (y) if such Incremental Term Loan includes an interest rate floor greater than the applicable interest rate floor for the then existing Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the then existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors and (z) for purposes of calculating the adjustments pursuant to this clause (v), such Indebtedness, if it is fixed rate Indebtedness, shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent and the Borrower (this clause (v), the “MFN Provision”) and (vi) the other terms applicable to such Incremental Term Loans shall be substantially identical to, or (taken as a whole as determined by the Administrative Agent) no more favorable to the lenders providing such Incremental Term Loan than, those applicable to any then outstanding Term Loans (or otherwise be reasonably satisfactory to the Administrative Agent), except to the extent such terms (x) applied to the Term Loans existing at the time of incurrence of such Incremental Term Loan (so that existing Lenders also receive the benefit of such provisions) and/or (y) are applicable only to periods after the Maturity Date in in effect at the time of incurrence of such Indebtedness.
(d) (i) Any Revolving Commitment Increase shall have be on the same terms as (other than with respect to any upfront fees) and pursuant to the same documentation applicable to the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending amendment, supplement or joinder evidencing such Incremental Revolving Commitment); and
increase) and (ii) the outstanding Revolving any Incremental Term Loan that increases an existing Class of Term Loans and the Pro Rata Share of L/C Obligations will shall be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders same terms (including the Additional Lenders providing such Incremental Revolving Commitmentmaturity date, amortization and, other than with respect to upfront fees (but subject to clause (c)(v) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation above as if such reallocation were Incremental Term Loan was in the form of a repaymentseparate Class), interest rates) and pursuant to the same determination applicable to the Class of Term Loans being increased (other than the amendment, supplement or joinder evidencing such increase).
(de) An Incremental Revolving Commitment Increase or the establishment of any Incremental Term Loan pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an amendment, supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender providing a Revolving Commitment Increase or Incremental Term Loan Commitment, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence , it being understood that such amendment supplement or joinder may provide for customary “certain funds provisions” as agreed to by the Borrower and the Lenders providing an Incremental Term Loan Commitment to the extent the proceeds of appropriate corporate authorization such Incremental Term Loan are being used to fund any Permitted Acquisition or permitted Investment. Any such amendment, supplement or joinder may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. To the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received customary legal opinions, board resolutions, solvency certificates, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the part Restatement Date under Section 3.1 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of the Borrowers with respect opinion reasonably satisfactory to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such complianceAdministrative Agent).
(ef) Upon the acceptance of any such agreement amendment, supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fg) Each supplement or joinder agreement referred to in clause (d)(i) above may, without On the consent date of the making of any other LendersIncremental Term Loans that will be added to any Class of Term Loans, effect and notwithstanding anything to the contrary set forth herein, such amendments Incremental Term Loans shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the same type with the same Interest Period of the respective Class. Upon each increase in the Revolving Commitments pursuant to this Agreement Section 2.14, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the other Loan Documents as may Revolving Commitment increase (each, an “Incremental Revolving Increase Lender”), and each such Incremental Revolving Increase Lender will automatically and without further act be necessarydeemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and Swingline Loans held by each Lender (including each such Incremental Revolving Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Xxxxxx’s Revolving Commitment after giving effect to such increase in the reasonable opinion aggregate Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Revolving Commitment Increase is implemented, the Lenders immediately after the effectiveness of such Revolving Commitment Increase shall purchase and assign at par such amounts of the Revolving Loans outstanding at such time as the Administrative Agent may require such that each Lender holds its Pro Rata Share of all Revolving Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the BorrowersLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to effect the provision of transactions effected pursuant to this Section 2.222.23.
(h) Each of the parties hereto acknowledges and agrees that no XXXX Event may be closed until the date that is (a) if there are no Mortgaged Properties located in an area which has been identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, ten (10) days or (b) if there are any Mortgaged Properties located in an area which has been identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, thirty (30) days (in each case, the “Notice Period”), after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Mortgaged Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such Mortgaged Property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and for (if applicable) notification to the avoidance Borrower that flood insurance coverage is not available and (B) evidence of doubtthe receipt by the Borrower of such notice and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Mortgaged Property is located, this evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents”; provided that any such XXXX Event may be closed prior to the Notice Period if the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably withheld, conditioned or delayed).
(i) This Section 2.22 2.23 shall supersede any provisions of Sections 2.20 in Section 2.21 or 11.2 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement (OneWater Marine Inc.), Credit Agreement (OneWater Marine Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Term Loan Commitments hereunder (such increase, an “Incremental Commitment”) so long as the following conditions are satisfied as of the funding date of such Incremental Commitment (the “Incremental Effective Date”):
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $12,500,000;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as maybe reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2018, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to (and is continuingas defined in) the Existing Credit Agreement and continued on the Closing Date as set forth in Section 2.1;
(v) the Borrower and Holdings shall be in pro forma compliance with each of the financial covenants set forth in Article VI, from time after giving effect to time after any such proposed increase, as of the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice most recently ended Fiscal Month (or Fiscal Quarter, as applicable) for which financial statements are required to have been delivered, calculated as if all such shorter Incremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of time as the Administrative Agent may agree Applicable Margin then in effect for Eurodollar Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to in its sole discretionthe difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityAgent.
(b) The Borrowers may designate a bank Borrower shall provide at least 5 days’ (or other financial institution (which may be, but need not be, one or more of the existing Lenderssuch shorter period as acceptable to Administrative Agent in its sole discretion) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable advance written notice to the Administrative AgentAgent of any request to establish an Incremental Commitment. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Term Loan Commitment, and any decision by a Lender to increase its Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of existing Lenders who desire to increase their Term Loan Commitments (the “Increasing Lenders”) and new Lenders who desire to provide Term Loan Commitments (the “Additional Lenders”) shall be required for an increase in the aggregate principal amount of the Term Loan Commitments pursuant to this Section. No Lender which acceptance will not declines to increase the principal amount of its Term Loan Commitment may be unreasonably withheld or delayedreplaced with respect to its existing Term Loans as a result thereof without such Lender’s consent.
(c) In Subject to subsections (a) and (b) of this Section, any increase requested by the case Borrower shall be effective upon delivery to the Administrative Agent of each Incremental Revolving Commitmentof the following documents:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share an originally executed copy of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder an instrument of joinder, in form and substance reasonably satisfactory acceptable to the Administrative Agent (an “Incremental Joinder Agreement”), executed by the Borrowers Borrower, the Administrative Agent, each Additional Lender and by each Additional Lender Increasing Lender, setting forth the Incremental Revolving Commitments of such Lenders and and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.5; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the funding of each such Incremental Commitment, the Term Loans and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Term Loans and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement The terms and provisions of the Incremental Term Loans shall be, except as otherwise set forth herein, identical to the existing Term Loans. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.4 shall be ratably increased after the making of any Incremental Term Loans under this Section 2.18 by the aggregate principal amount of such Incremental Term Loans (subject to customary adjustments to provide for the “fungibility” of such Incremental Term Loans). Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent (together with the consent of the Borrower) is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or joinder agreement referred advisable in connection therewith (including amendments to implement the requirements in clause (d)(ithe preceding sentence and amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence) above may, without the consent of any Lender other Lenders, effect than the Lenders participating in such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision Incremental Term Loans.
(e) For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 2 contracts
Samples: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrowers and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $50,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist, all representations and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period warranties of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 Loan Party set forth in the aggregate over the term of this Agreement. No Lender Loan Documents shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments true and correct in all material respects (other than any initial upfront fees paid those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2012, there shall have been no change which has had or could reasonably be expected to the Additional Lenders extending such Incremental Revolving Commitment); andhave a Material Adverse Effect;
(iiiii) the outstanding any incremental Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Commitments provided pursuant to this Section 2.22 (the “Incremental Revolving Commitments”) shall become effective upon have a termination date no earlier than the receipt by the Administrative Agent of:Revolving Commitment Termination Date;
(iiv) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by their Subsidiaries shall be in pro forma compliance with each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the financial covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Revolving Commitments added through such agreement had been established (and (iifully funded) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and first day of the Borrowers, to effect the provision of this Section 2.22, and relevant period for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.testing compliance;
Appears in 2 contracts
Samples: Revolving Credit Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp)
Increase of Commitments; Additional Lenders. The Borrower shall have the right, from time to time, upon at least five (5) Business Days’ prior written notice to the Administrative Agent (or such shorter notice as the Administrative Agent may agree in its sole discretion), to increase the Aggregate Acquisition Revolving Commitments and/or Aggregate Working Capital Revolving Commitments (each such increase, an “Incremental Revolver Increase”), and/or establish one (1) or more additional term loans (each such term loan, an “Incremental Term Loan”; and each Incremental Term Loan, together with each Incremental Revolver Increase, an “Incremental Commitment”), by up to Fifty Million Dollars ($50,000,000) in aggregate principal amount of such Incremental Commitments, provided, that:
(a) So long as no Default or Event of Default has shall have occurred and be continuing on the date on which such Incremental Revolver Increase or Incremental Term Loan is continuingto become effective;
(b) any such Incremental Commitment shall be in a minimum amount of $5,000,000, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice and in integral multiples of $1,000,000 in excess thereof (or such shorter period of time lesser amounts as the Administrative Agent may agree to in its sole discretion);
(c) to any such Incremental Commitment shall be effective only upon receipt by the Administrative Agent of: (who shall promptly provide i) additional Acquisition Revolving Commitments or Working Capital Revolving Commitments, as applicable, in a copy corresponding amount of such notice to each Lender), propose to requested increase in the Aggregate Acquisition Revolving Commitments and/or Working Capital Revolving Commitments, or Incremental Term Loan Commitments, as applicable, from either existing Lenders and/or one (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b1) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend other institutions that qualify as assignees under Section 11.4 (each such Incremental Facility (eachinstitution, an “Additional Lender”); and (ii) documentation from each existing Lender or Additional Lender providing an Incremental Commitment evidencing its agreement to provide an Incremental Commitment and its acceptance of the obligations under this Agreement, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent; provided, which acceptance will that, any increase in the Aggregate Working Capital Revolving Commitments must be from new or existing Lenders acceptable to each of the Administrative Agent, the Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld or delayed.);
(cd) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment Administrative Agent shall have received resolutions of the same terms as board of directors (or other applicable governing body or Person) of the existing Revolving Commitments (other than any initial upfront fees paid Loan Parties, secretary’s certificates of the Loan Parties, closing certificates, opinions of counsel to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans Loan Parties and the Pro Rata Share of L/C Obligations will be reallocated other documents reasonably requested by the Administrative Agent on Agent, or required to be provided by the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make , all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent executed by shall have received a Pro Forma Compliance Certificate demonstrating (i) compliance with the Borrowers financial covenants hereunder, and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on that the part Consolidated Net Leverage Ratio, calculated as of the Borrowers with respect to date of incurrence of such Incremental Commitment, is not greater than 3.00:1.00, in the Incremental Facility, and
case of each of clauses (iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(ai) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) ii), after giving effect to such Incremental Revolver Increase (assuming, for purposes of such demonstration, that all revolving Commitments, as increased, are fully drawn) or Incremental Term Loan on a Pro Forma Basis, in form and substance reasonably satisfactory to the Administrative Agent;
(f) if any Acquisition Revolving Loans or Working Capital Revolving Loans, as applicable, are outstanding at the time of the increase in the Aggregate Acquisition Revolving Commitments or the Aggregate Working Capital Revolving Commitments, the Borrower shall, if applicable, prepay one (1) or more existing Acquisition Revolving Loan(s) or Working Capital Revolving Loan(s), as applicable (such prepayment to be subject to Section 2.19), in an amount necessary such that, after giving effect to such Incremental Revolver Increase, each Lender will hold its Pro Rata Share of outstanding Acquisition Revolving Loans or Working Capital Revolving Loans, as applicable;
(g) any increase in the Aggregate Acquisition Revolving Commitments or Aggregate Working Capital Revolving Commitments under this Section 2.23 shall have terms identical to those for the Acquisition Revolving Loans or Working Capital Revolving Loans, as applicable, under this Agreement, except for fees payable to the Lenders providing commitments for such Incremental Revolver Increase;
(h) amortization, pricing and use of proceeds applicable to any Incremental Term Loan shall be as set forth in the payment definitive documentation therefor, provided, that: (i) any such Incremental Term Loan shall have a final maturity date that is coterminous with, or later than, the Working Capital Revolving Commitment Termination Date and each applicable Maturity Date of each then-outstanding Term Loan; (ii) the Weighted Average Life to Maturity of such Incremental Term Loan shall not be less than the Weighted Average Life to Maturity of the Term Loan A, or of any related feesother then-existing Incremental Term Loan; and (iii) the All-In Yield applicable to such Incremental Term Loan shall not be more than one half of one percent (0.50%) higher than the corresponding All-In Yield applicable to the Term Loan A, or to any then-outstanding Incremental Term Loan (it being understood that interest on the Borrowers would Term Loan A and any existing Incremental Term Loan may be in compliance on increased to the extent necessary to satisfy this requirement);
(i) all conditions precedent to the making of a pro forma basis with Loan and/or the covenants issuance of a Letter of Credit set forth in Section 8.4 (after giving effect to any Borrowings to be made on 3.2 shall have been satisfied at the date that the Incremental Facility becomes effective, and deeming time of establishment of any Incremental Revolver Increase (even if there is no Borrowing thereunder on such date);
(j) no Lender (or any successor thereto) shall have any obligation to increase its Acquisition Revolving Commitment, its Working Capital Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any its other Lenders, effect such amendments to obligations under this Agreement and the other Loan Documents Documents, or to provide any portion of any Incremental Term Loan, and any decision by a Lender to increase its Acquisition Revolving Commitment, its Working Capital Revolving Commitment, or to provide any portion of any Incremental Term Loan, shall, in each case, be made in its sole discretion independently from any other Lender; and
(k) neither the Arrangers nor any Lender shall have any responsibility for arranging any such Incremental Commitment without their prior written consent and subject to such conditions, including fee arrangements, as they may be necessaryprovide in connection therewith. Notwithstanding anything to the contrary in this Section 2.23, in the reasonable opinion case of any Incremental Term Loan to be provided in connection with a Limited Condition Acquisition, at the sole election of the Administrative Agent and Borrower, the Borrowersconditions in clauses (a) and/or (i) above may be subject to Section 1.7. Notwithstanding anything to the contrary in any Loan Document, in no event shall any Incremental Revolver Increase pursuant to effect the provision of this Section 2.22, and for the avoidance of doubt, this 2.23 be subject to Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary1.7.
Appears in 2 contracts
Samples: Credit Agreement (Rotech Healthcare Holdings Inc.), Credit Agreement (Rotech Healthcare Holdings Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, The Borrower shall have the right from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten daysfive (5) Business Days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Facility”) or establish one or more additional term loans (each such term loan, an “Incremental Term Facility”, and together with each Incremental Revolving Facility, an “Incremental Facility”) by an amount not to exceed the Maximum Incremental Facilities Amount; provided that:
(a) no Default or Event of Default shall have occurred and be continuing on the date on which such Incremental Facility is to become effective;
(b) such Incremental Facility shall be in a minimum amount of $20,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion);
(c) such Incremental Revolving Facility or Incremental Term Facility shall be effective only upon receipt by the Administrative Agent of (i) additional Revolving Commitments (each such commitment, an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate ) in a corresponding amount of all such requested Incremental Revolving Commitments shall not exceed $50,000,000 Facility or Incremental Term Loan Commitments, in the aggregate over the term each case, in a corresponding amount of this Agreement. No Lender shall have any obligation to extend any such requested Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, Term Facility from either existing Lenders and/or one or more of other institutions that qualify as assignees under Section 11.4 and which are approved by the existing LendersAdministrative Agent (such approval not to be unreasonably withheld or delayed) to extend (each such Incremental Facility (eachinstitution, an “Additional Lender”), which at ) and (ii) documentation from each existing Lender or Additional Lender providing an Incremental Revolving Commitment or Incremental Term Loan Commitment evidencing its agreement to provide an Incremental Revolving Commitment and/or Incremental Term Loan Commitment and its acceptance of the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.;
(cd) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders shall have received all documents (including resolutions of the Additional board of directors of the Loan Parties and opinions of counsel to the Loan Parties, if required to be provided by the Lenders providing such Incremental Revolving CommitmentFacility) in accordance with their revised Pro Rata Shares (it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility and the Revolving Lenders (including the Additional Lenders providing validity of such Incremental Revolving Commitment) agree Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).Administrative Agent;
(de) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
shall have received a Pro Forma Compliance Certificate demonstrating compliance with the financial covenants in Article VI hereof after giving effect to such Incremental Facility (iwithout “netting” the cash proceeds of the applicable Incremental Facility against Consolidated Total Debt and assuming, for purposes of such demonstration, that all Incremental Revolving Commitments are fully drawn) on a supplement or joinder Pro Forma Basis in form and substance reasonably satisfactory to the Administrative Agent executed by (it being understood and agreed that in the Borrowers and by each Additional Lender setting forth the case of any Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization Facility incurred in reliance on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and clause (b) will be satisfied before and after giving effect to the incurrence of the definition of Maximum Incremental Facility and Facilities Amount, such Pro Forma Compliance Certificate shall also demonstrate compliance with the Consolidated Total Net Leverage Ratio test in such clause (Bb) after giving effect to such increase Incremental Facility (without “netting” the cash proceeds of the applicable Incremental Facility against Consolidated Total Debt and assuming, for purposes of such demonstration, that all Incremental Revolving Commitments are fully drawn) on a Pro Forma Basis in form and substance reasonably satisfactory to the Administrative Agent);
(f) if any Revolving Loans are outstanding at the time of the incurrence of any Incremental Revolving Facility, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.19) in an amount necessary such that after giving effect to such Incremental Revolving Facility, each Lender will hold its Pro Rata Share of outstanding Revolving Loans;
(g) any Incremental Revolving Facility shall have terms identical to those for the Revolving Loans under this Agreement, except for fees payable to the Lenders providing commitments for such Incremental Revolving Facility;
(h) amortization, mandatory prepayments, pricing and use of proceeds applicable to any Incremental Term Facility shall be as set forth in the definitive documentation therefor; provided that (i) any such Incremental Term Facility shall have a final maturity date that is coterminous with or later than the Revolving Commitment Termination Date and the payment Maturity Date of each then outstanding Term Loan and (ii) the weighted average life to maturity of such Incremental Term Facility shall not be less than the weighted average life to maturity of any related fees, other then-existing Incremental Term Facility;
(i) all conditions precedent to the Borrowers would be in compliance on making of a pro forma basis with Loan and/or the covenants issuance of a Letter of Credit set forth in Section 8.4 (after giving effect to 3.2 shall have been satisfied at the time of incurrence of any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming (even if there is no Borrowing thereunder on such date);
(j) no Lender (or any Incremental successor thereto) shall have any obligation to increase its Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any its other Lenders, effect such amendments to obligations under this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion or to provide any portion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22any Incremental Term Facility, and any decision by a Lender to increase its Revolving Commitment or provide any portion of any Incremental Term Facility shall be made in its sole discretion independently from any other Lender; and
(k) no Lead Arranger nor any Lender shall have any responsibility for the avoidance of doubtarranging any such Incremental Facility without their prior written consent and subject to such conditions, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryincluding fee arrangements, as they may provide in connection therewith.
Appears in 2 contracts
Samples: Credit Agreement (Biotelemetry, Inc.), Credit Agreement (Biotelemetry, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments to an amount not to exceed $150,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Revolving Notes evidencing such increase in the Revolving Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.20 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co), Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Increase of Commitments; Additional Lenders. (a) So long The Borrowers may increase, upon the one time request of the Borrower Agent, the then effective amount of the Aggregate Revolving Credit Commitment; provided that: (i) the principal amount of the increases in the Aggregate Revolving Credit Commitment pursuant to this Section 2.16, shall not exceed Fifty Million Dollars ($50,000,000); (ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be required by the Agent in connection with such increases and at the time of any such proposed increase; (iii) no Default or Event of Default has shall have occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (be continuing or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the payment Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of any related feesthe date of such increase or, to the Borrowers would be extent such representations and warranties expressly relate to an earlier date, true and correct in compliance all material respects on and as of such earlier date; and (iv) the Incremental Revolving Credit Commitments provided under this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date.
(b) The Agent shall invite each Lender to increase the principal amount of its Revolving Credit Commitment, on a pro forma basis rata basis, in connection with the covenants set forth proposed Incremental Revolving Credit Commitments at the interest margin proposed by the Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then the Agent or the Borrowers may invite any prospective lender who is reasonably satisfactory to the Agent to become a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 8.4 2.16. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lender agreeing to increase their Revolving Credit Commitments (after giving effect the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Revolving Credit Commitments, as applicable, as a result thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Borrowings increase requested by the Borrowers shall be effective upon delivery to the Agent of each of the following documents (the date of such effectiveness, the “Increase Date”): (i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to the Agent; (ii) a notice to the Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to the Agent, signed by a Responsible Officer of the Borrower Agent; (iii) a certificate of the Borrower Agent signed by a Responsible Officer, in form and substance acceptable to the Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that the Agent shall request, each in form and substance satisfactory to the Agent.
(d) Anything to the contrary contained herein notwithstanding, if the All-In Yield that is to be applicable to the Revolving Credit Loans to be made on the date that pursuant to the Incremental Facility becomes effectiveRevolving Credit Commitments is higher than the All-In Yield applicable to the Revolving Credit Loans hereunder immediately prior to the Increase Date (the amount by which the All-In Yield is higher, and deeming any Incremental the “Excess”), then the interest margin applicable to the Revolving Commitment Credit Loans immediately prior to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Increase Date shall automatically be increased by the amount of the Incremental Excess, subject to the occurrence of and effective upon the Increase Date, and without the necessity of any action by any party hereto.
(e) Each of the Lenders having a Revolving Commitments added through Credit Commitment prior to the Increase Date (the “Pre-Increase Revolving Credit Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Date (the “Post-Increase Revolving Credit Lenders”), and such agreement Post-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount thereof, such interests in the Revolving Credit Loans and (ii) Schedule I participation interests in Swingline Loans and undrawn Letters of Credit on such Increase Date as shall automatically be deemed amended to reflect the Commitments of all Lenders necessary in order that, after giving effect to the addition all such assignments and purchases, such Revolving Credit Loans and participation interests in Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in accordance with their Pro Rata Shares after giving effect to such increased Revolving Credit Commitments.
(f) Each supplement or joinder agreement referred to Unless otherwise specifically provided herein, all references in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the any other Loan Documents as may Document to Revolving Credit Loans shall be necessarydeemed, in unless the reasonable opinion of the Administrative Agent and the Borrowerscontext otherwise requires, to effect include Revolving Credit Loans made pursuant to the provision of Incremental Revolving Credit Commitments pursuant to this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary2.16.
Appears in 2 contracts
Samples: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or request incremental term loans hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $500,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2020, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) (x) any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the Revolving Commitment Termination Date or any then existing Incremental Term Loans and is continuing(2) have no amortization or otherwise be permitted to be prepaid prior to the Revolving Commitment Termination Date or the latest existing Maturity Date of any tranche of Incremental Term Loans, from time and (y) any incremental Revolving Commitments provided pursuant to time after this Section (the Restatement Effective “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the Borrowers mayfirst day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and any existing Incremental Term Loans, upon (ii) shall be equally and ratably secured with the Revolving Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event no more favorably than) the Revolving Loans; and
(vii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or provide Incremental Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Incremental Term Loans, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all its Revolving Commitment and/or provide Incremental Term Loans, and any decision by a Lender to increase its Revolving Commitments Commitment and/or provide Incremental Term Loans shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term of Revolving Commitments and/or the Incremental Term Loans, as applicable, pursuant to this AgreementSection. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide Incremental Term Loans may be replaced with respect to its existing Revolving Commitment and/or its Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have any obligation declined to extend any increase its Revolving Commitment and/or provide Incremental Facility.
(b) Term Loans, as applicable. The Borrowers Borrower may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Incremental Term Loans of the Increasing Lenders plus the Revolving Commitments and the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments and/or new Incremental Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in paragraph (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement If any Incremental Term Loans or joinder any Incremental Revolving Commitments are to have terms that are different from the existing Incremental Term Loans or the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans or Incremental Revolving Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Borrower, without the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Term Loans and/or Incremental Revolving Commitments and the other Loan Documents Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Section, regardless of whether such Incremental Revolving Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as may be necessarybetween the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Sila Realty Trust, Inc.), Revolving Credit Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, Funding Date and upon at least ten 20 days’ written notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lenderreasonably agree), propose the Borrowers may elect to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate Credit Commitment Amount up to a total amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 1,100,000,000 at any time in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facilityeffect.
(b) The Borrowers may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, (x) in the case of any such Incremental Facility Person that is an existing Lender, increase the amount of its Commitment, and (each, y) in the case of any other such Person (an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution that is not an existing Lender must be reasonably acceptable to the Administrative Agent, the Swingline Lender and the Issuing Banks (in each case, which acceptance will not be unreasonably withheld withheld, delayed or delayedconditioned) if the consent of the Administrative Agent, the Swingline Lender and the Issuing Banks would be required to effect an assignment to such bank or financial institution under Section 11.10(b). No Lender shall have any obligation whatsoever to agree to increase the amount of its Commitment.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.14 shall become effective upon the receipt by the Administrative Agent of:
of (i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Commitment Increase Agreement signed by the Borrowers and Borrowers, by each Additional Lender setting forth and by each existing Lender the Incremental Revolving Commitments amount of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
(ii) increased, together with such evidence of appropriate corporate (or equivalent) authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer increase in the amount of the Borrowers Commitments, (ii) duly executed amendments of each Collateral Rig Mortgage then in effect to reflect the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and Commitment amount immediately after giving effect to the incurrence Commitment Increase Agreement and (iii) such opinions of counsel for the Borrowers with respect to the increase in the amount of the Incremental Facility and (B) after giving effect to such increase and Commitments as the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement receipt by the Administrative AgentAgent of the items described in Section 2.14(c), (i) the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through pursuant to such agreement Commitment Increase Agreement and (ii) Schedule Annex I shall be automatically be deemed amended updated to reflect the Commitments Commitment amounts of all Lenders each Lender immediately after giving effect to the addition of such CommitmentsCommitment Increase Agreement.
(fe) Each supplement or joinder agreement referred to in clause (d)(i) above may, without On the consent effective date of any other increase in the aggregate amount of the Commitments pursuant to this Section 2.14 that is not pro rata among all Lenders, effect such amendments to this Agreement and (i) the other Loan Documents as may be necessaryBorrowers, in the reasonable opinion of the Administrative Agent and the BorrowersLenders shall make adjustments to the outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to such date), including the repayment of Revolving Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Percentages immediately after giving effect to such increase, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have automatically made an assignment of its outstanding Revolving Loans, and assumed outstanding Revolving Loans of other Lenders as may be necessary to effect the provision of this foregoing (notwithstanding the requirements set forth in Section 2.2211.10), and for (ii) the avoidance amount of doubtthe unfunded participations held by each Lender in each Letter of Credit and Swingline Loan then outstanding shall be adjusted such that, this Section 2.22 immediately after giving effect to such adjustments, the Lenders shall supersede any provisions hold unfunded participations in each such Letter of Sections 2.20 or 11.2 Credit and Swingline Loan in the proportion its respective Percentage immediately after giving effect to the contrarysuch increase.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Paragon Offshore Ltd.), Senior Secured Revolving Credit Agreement (Noble Corp PLC)
Increase of Commitments; Additional Lenders. (a) Increase of the Revolving Loan Commitments.
(i) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent Borrower, on behalf of Borrowers, may agree request the right to effectuate increases in its sole discretion) the Revolving Loan Commitments (any such increase, a “Commitment Increase”), in an aggregate amount of up to $50,000,000 for all such Commitment Increases (the “Commitment Increase Cap”), during the term of this Agreement by delivering a Notice of Requested Commitment Increase to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 substantially in the aggregate over the term form of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
Exhibit J (b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more “Notice of the existing Lenders) to extend such Incremental Facility (each, an “Additional LenderRequested Commitment Increase”), which at provided that, in each case: (A) each Commitment Increase shall be in minimum increments of $10,000,000; (B) the time agrees proposed Commitment Increase shall have been consented to extend such Incremental Facility; provided howeverin writing by the Administrative Agent, that each Lender (if any) who is increasing its Revolving Loan Commitment and any new other bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not Agent that has agreed to become a Lender in respect of all or a portion of the Commitment Increase (a “New Lender”); (C) the pricing and other terms applicable to the Commitment Increase shall be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as those applicable to the existing Revolving Commitments Loan Commitments; (other than D) the proposed Commitment Increase, together with any initial upfront fees paid prior Commitment Increase, shall not exceed the Commitment Increase Cap; (E) Availability, measured on a pro forma basis after giving effect to the Additional Lenders extending such Incremental Revolving Commitment)Commitment Increase, for the five consecutive Business Days prior to the Commitment Increase is at least $20,000,000; and
and (iiF) the outstanding Revolving Loans and Fixed Charge Coverage Ratio as of the Pro Rata Share end of L/C Obligations will be reallocated by the fiscal month most recently ended for which the Administrative Agent has received financial statements at the time of the Commitment Increase, for the period of the immediately preceding twelve (12) months, of not less than 1.00:1.00. Each Notice of Requested Commitment Increase shall specify: (1) the amount of the proposed Commitment Increase and (2) the requested date of the proposed Commitment Increase (which shall be at least thirty (30) days from the date of delivery of the Notice of Requested Commitment Increase). Each Notice of Requested Commitment Increase shall be binding on all Borrowers. Upon the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay of any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by Increase, the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory Borrower shall deliver to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer the chief financial officer of the Borrowers to the effect Administrative Agent certifying that (A) no Default or Event of Default then exists or would be caused thereby and that the conditions set forth in Section 4.2(aclause (D), (E) and (bF) will are satisfied. No Commitment Increase shall be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by effective until the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Agent shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such have received amendments to this Agreement and the other Loan Documents as may Documents, commitments of Lenders or New Lenders in an aggregate amount equal to such Commitment Increase, agreements for each Lender or New Lender committing to such Commitment Increase (each, a “Lender Agreement”), any upfront fees to be necessarypaid to the Lenders committing to such Commitment Increase, and such opinion letters, Revolving Loan Notes and other agreements, documents and instruments requested by and reasonably satisfactory to the Administrative Agent in its reasonable discretion evidencing and setting forth the conditions of such Commitment Increase.
(ii) If the Administrative Agent approves a proposed Commitment Increase, the Administrative Agent shall deliver a copy of the Notice of Requested Commitment Increase relating thereto to each Lender. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement or the other Loan Documents, and any decision by a Lender to increase its Revolving Loan Commitment shall be made in its sole discretion independently from any other Lender. If the Administrative Agent receives commitments from the Lenders or the New Lenders in excess of the amount of the proposed Commitment Increase, the Administrative Agent shall have the right, in its sole discretion, to reduce and reallocate (within the reasonable opinion minimum and maximum amounts specified by each such Lender or New Lender in its notice to the Administrative Agent) the shares of such Commitment Increase of the Lenders or New Lenders willing to fund the proposed Commitment Increase so that the total committed shares of the proposed Commitment Increase equals the proposed Commitment Increase. The Administrative Agent shall notify each Lender or New Lender, as the case may be, whether its proposed share of the proposed Commitment Increase has been accepted and, if so, the amount of its share of such Commitment Increase, and such Lender shall thereafter execute and deliver a Lender Agreement with respect to its respective share of such Commitment Increase.
(iii) Notwithstanding anything to the contrary contained herein, each Commitment Increase meeting the conditions set forth in Section 2.17(a)(i) shall not require the consent of any Lender other than those Lenders, if any, which have agreed to increase their Revolving Loan Commitments in connection with such Commitment Increase and shall not constitute an amendment, modification or waiver that is subject to Section 11.12 and shall be effective as of the later of (a) the date specified in the applicable Notice of Requested Commitment Increase and (b) the date upon which the foregoing conditions shall have been satisfied or waived by the Administrative Agent and the BorrowersLenders which have agreed to increase their Revolving Loan Commitments, to effect or by the provision Required Lenders in accordance with Section 11.12 in the case of this Section 2.22a waiver of an Event of Default, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryas applicable.
Appears in 2 contracts
Samples: Credit Agreement (Haverty Furniture Companies Inc), Credit Agreement (Haverty Furniture Companies Inc)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, Parent, the Borrowers, and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $15,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Loan Parties shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, in which case such representations and warranties shall be true and correct in all respects), and, since March 27, 2016, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Commitments shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) Parent and is continuingits Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Month for which financial statements are required to have been delivered, from time calculated as if all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) [reserved];
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) all other terms and conditions with respect to time after any such Incremental Commitments shall be reasonably satisfactory to the Restatement Effective Date, the Borrowers may, upon Administrative Agent.
(b) The Borrower Agent shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (or such shorter period as shall be agreed by the Administrative Agent). The Borrower Agent may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments (an “Incremental Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment” . Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice (or an “such shorter period of time as shall have been agreed to by the Administrative Agent), specify in a written notice to the Borrower Agent and the Administrative Agent the amount of such proposed Incremental Facility”); provided Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all Incremental its Revolving Commitments Commitment, and any decision by a Lender to increase its Revolving Commitment shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term of Revolving Commitments pursuant to this AgreementSection. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower Agent and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice (or such shorter period of time as shall have any obligation been agreed to extend any Incremental Facility.
(b) The by the Administrative Agent), such Lender shall be deemed to have declined to increase its Revolving Commitment. Parent and Borrowers may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. Parent, that the Borrowers, and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to the foregoing provisions of this Section, any new bank or financial institution must increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and each Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of Parent and the Borrowers with respect to such Incremental Commitment and such opinions of counsel for Parent and the Borrowers with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of Parent and each Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount Commitments issued by each Borrower in accordance with Section 2.12; and
(v) any other certificates or documents that the Administrative Agent shall automatically reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be increased by the amount of adjusted to give effect to the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder If any Incremental Commitments are to have terms that are different from the Revolving Commitments outstanding immediately before the effectiveness thereof (any such Incremental Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Parent, without each Borrower, the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Commitments and the other Loan Documents Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Parent or any Borrower incurs Incremental Commitments under this Section, regardless of whether such Incremental Commitments are Non-Conforming Credit Extensions, the Borrowers shall, after such time, repay and incur Revolving Loans ratably as may be necessarybetween the Incremental Commitments and the Revolving Commitments outstanding immediately before the effectiveness thereof. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in this clause (d), amendments to ensure pro rata allocations of Loans among all Lenders and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Borrowers, to effect Revolving Commitments outstanding immediately before the provision effectiveness of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryIncremental Commitments).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective DateDate and in accordance with this Section, Parent, the Borrowers mayBorrowers, upon and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $50,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Loan Parties shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, in which case such representations and warranties shall be true and correct in all respects), and, since March 26, 2017, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Commitments shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) Parent and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Month for which financial statements are required to have been delivered, calculated as if all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) [reserved];
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower Agent shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (or such shorter period as shall be agreed by the Administrative Agent). The Borrower Agent may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments (an “Incremental Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment” . Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice (or an “such shorter period of time as shall have been agreed to by the Administrative Agent), specify in a written notice to the Borrower Agent and the Administrative Agent the amount of such proposed Incremental Facility”); provided Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all Incremental its Revolving Commitments Commitment, and any decision by a Lender to increase its Revolving Commitment shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term of Revolving Commitments pursuant to this AgreementSection. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower Agent and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice (or such shorter period of time as shall have any obligation been agreed to extend any Incremental Facility.
(b) The by the Administrative Agent), such Lender shall be deemed to have declined to increase its Revolving Commitment. Parent and Borrowers may accept some or all of each Increasing Lender’s offered amounts or designate a bank or other financial institution new lenders that are acceptable to the Administrative Agent (which may be, but need such approval not be, one or more of to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the existing Lenders) to extend such Incremental Facility (each, an “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental FacilityCommitment; provided provided, however, that any new bank of the foregoing to the contrary notwithstanding, Parent and Borrowers shall accept so much of each Increasing Lender’s offered amount as is equal to such Increasing Lender’s Pro Rata Share of such Incremental Commitment (as determined before giving effect to such Incremental Commitment). Subject to the proviso of the immediately preceding sentence, Parent, the Borrowers, and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to the foregoing provisions of this Section, any increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of a commitment increase or financial institution must be an instrument of joinder, as applicable, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and each Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of Parent and the Borrowers with respect to such Incremental Commitment and such opinions of counsel for Parent and the Borrowers with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of Parent and each Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount Commitments issued by each Borrower in accordance with Section 2.12; and
(v) any other certificates or documents that the Administrative Agent shall automatically reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be increased by the amount of adjusted to give effect to the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder If any Incremental Commitments are to have terms that are different from the Revolving Commitments outstanding immediately before the effectiveness thereof (any such Incremental Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Parent, without each Borrower, the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Commitments and the other Loan Documents Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Parent or any Borrower incurs Incremental Commitments under this Section, regardless of whether such Incremental Commitments are Non-Conforming Credit Extensions, the Borrowers shall, after such time, repay and incur Revolving Loans ratably as may be necessarybetween the Incremental Commitments and the Revolving Commitments outstanding immediately before the effectiveness thereof. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in this clause (d), amendments to ensure pro rata allocations of Loans among all Lenders and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Borrowers, to effect Revolving Commitments outstanding immediately before the provision effectiveness of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryIncremental Commitments).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, Funding Date and upon at least ten 20 days’ written notice to the Administrative Agent (or such shorter period of time as the Administrative Agent and Company may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lenderagree), propose the Company may elect to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate Credit Commitment Amount up to a total amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 2,000,000,000 at any time in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facilityeffect.
(b) The Borrowers Company may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, (i) in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and (each, ii) in the case of any other such Person (an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lenders and/or the Issuing Banks (in each case, which acceptance will not be unreasonably withheld or delayed) if the consent of the Administrative Agent, the Swingline Lenders or the Issuing Banks, as the case may be, would be required to effect an assignment to such Person under Section 10.10(b). No Lender shall have any obligation whatsoever to agree to increase its Commitment.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.14 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Commitment Increase Agreement signed by the Borrowers and Company, by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of by each Additional other Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
(ii) increased, together with such evidence of appropriate corporate authorization on the part of the Borrowers Company with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Company with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement Commitment Increase Agreement by the Administrative Agent, (i) the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I 1A shall be automatically be deemed amended updated to reflect the Commitments Commitment amounts of all Lenders each Lender immediately after giving effect to the addition of such CommitmentsCommitment Increase Agreement.
(fe) Each supplement or joinder agreement referred to in clause (d)(i) above may, without On the consent effective date of any other increase in the aggregate amount of the Commitments pursuant to this Section 2.14 that is not pro rata among all Lenders, effect such amendments to this Agreement and (i) the other Loan Documents as may be necessaryBorrowers, in the reasonable opinion of the Administrative Agent and the BorrowersLenders shall make adjustments to the outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to such date), including the repayment of Revolving Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Percentages immediately after giving effect to such increase, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have automatically made an assignment of its outstanding Revolving Loans, and assumed outstanding Revolving Loans of other Lenders as may be necessary to effect the provision of this foregoing (notwithstanding the requirements set forth in Section 2.2210.10), and for (ii) the avoidance amount of doubtthe unfunded participations held by each Lender in each Letter of Credit and Swingline Loan then outstanding shall be adjusted such that, this Section 2.22 immediately after giving effect to such adjustments, the Lenders shall supersede any provisions hold unfunded participations in each such Letter of Sections 2.20 or 11.2 Credit and Swingline Loan in the proportion of its respective Percentage immediately after giving effect to the contrarysuch increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time after the Fifth Restatement Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments and/or provide incremental Term Loans hereunder (each such increase, an "Incremental Commitment") so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the "Incremental Commitment Amount");
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist and is continuingall representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, from time in which case such representations and warranties shall be true and correct in all respects, (ii) representations and warranties effective as of a specified date, which shall remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement);
(iv) (x) any incremental Term Loans made pursuant to time after this Section (the Restatement Effective "Incremental Term Loans") shall have a maturity date no earlier than the Extended Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Extended Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the "Incremental Revolving Commitments") shall have a termination date no earlier than the Extended Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the Borrowers mayfirst day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Term Loans or Eurodollar Revolving Loans, upon as applicable, plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans or the existing Revolving Commitments, as applicable (the "Existing Yield"), then the Applicable Margin of the existing Term Loans or the existing Revolving Loans, as applicable, shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) except with respect to amortization, pricing and final maturity as set forth above in this clause (a), any Incremental Term Loan shall be on terms consistent with the initialExtended Term Loans; and any Incremental Revolving Commitments shall be on terms (including all-in pricing and maturity date) consistent with the initialExtended Revolving Commitments.
(b) The Borrower shall provide at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the "Increasing Lenders") that agree to provide Incremental Commitments, which fees may be variable based upon the amount of any such Lender's Incremental Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the Aggregate aggregate principal amount of its Revolving Commitment and/or to provide any additional Term Loan, and any decision by a Lender to increase its Revolving Commitment and/or provide any additional Term Loan shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or to provide any additional Term Loan, as applicable, pursuant to this Section, and then only with respect to the increased Commitment(s) of such Lender. No Lender which declines to provide an Incremental Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender's consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide an Incremental Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide an Incremental Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (an “such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the "Additional Lenders"), which Additional Lenders may assume all or a portion of such Incremental Revolving Commitment” or an “Incremental Facility”); provided that . The Borrower and the aggregate amount Administrative Agent shall have discretion jointly to adjust the allocation of all such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the aggregate Incremental Commitments of the Increasing Lenders and the Additional Lenders provided after the Fifth Restatement Date shall not exceed $50,000,000 in the aggregate over exceed the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityCommitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility (eachan originally executed copy of an instrument of joinder, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fe) Each supplement If any Incremental Term Loans are to have terms that are different from the Extended Term Loans or joinder the Extended Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the "Non-Conforming Credit Extensions"), all such terms shall be as set forth in a separate assumption agreement referred among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to in clause (d)(i) above may, without the consent effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.11 shall be ratably increased after the making of any Incremental Term Loans (other Lendersthan Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions that are Term Loans, effect all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such amendments to Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Agreement Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the other Loan Documents as may be necessaryRevolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision any such incurrence). For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Fifth Restatement Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments and/or provide incremental Term Loans hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist and is continuingall representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, from time in which case such representations and warranties shall be true and correct in all respects, (ii) representations and warranties effective as of a specified date, which shall remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement);
(iv) (x) any incremental Term Loans made pursuant to time after this Section (the Restatement Effective “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the Borrowers mayfirst day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Term Loans or Eurodollar Revolving Loans, upon as applicable, plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans or the existing Revolving Commitments, as applicable (the “Existing Yield”), then the Applicable Margin of the existing Term Loans or the existing Revolving Loans, as applicable, shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) except with respect to amortization, pricing and final maturity as set forth above in this clause (a), any Incremental Term Loan shall be on terms consistent with the initial Term Loans; and any Incremental Revolving Commitments shall be on terms (including all-in pricing and maturity date) consistent with the initial Revolving Commitments.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to provide Incremental Commitments, which fees may be variable based upon the amount of any such Lender’s Incremental Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate principal amount of all Incremental its Revolving Commitments Commitment and/or to provide any additional Term Loan, and any decision by a Lender to increase its Revolving Commitment and/or provide any additional Term Loan shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term Revolving Commitments and/or to provide any additional Term Loan, as applicable, pursuant to this Section, and then only with respect to the increased Commitment(s) of this Agreementsuch Lender. No Lender which declines to provide an Incremental Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide an Incremental Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have any obligation declined to extend any provide an Incremental Facility.
(b) Commitment. The Borrowers Borrower may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the aggregate Incremental Commitments of the Increasing Lenders and the Additional Lenders provided howeverafter the Fifth Restatement Date shall not in the aggregate exceed the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fe) Each supplement If any Incremental Term Loans are to have terms that are different from the Term Loans or joinder the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to in clause (d)(i) above may, without the consent effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.11 shall be ratably increased after the making of any Incremental Term Loans (other Lendersthan Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions that are Term Loans, effect all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such amendments to Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Agreement Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the other Loan Documents as may be necessaryRevolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision any such incurrence). For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) each of the conditions set forth in Section 3.2 shall be satisfied;
(ii) no Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the Borrowers may“Incremental Commitment Amount”);
(iv) any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Maturity Date;
(v) the Borrower and its Subsidiaries shall be in compliance with the Incurrence Test;
(vi) if the Initial Yield applicable to any such Incremental Commitment exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Revolving Loans plus one fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments (the “Existing Yield”), upon then the Applicable Margin of the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum; and
(vii) any Collateral securing any such Incremental Commitment shall also secure all other Obligations on a pari
(b) The Borrower shall provide at least ten days(10) Business Days’ written notice (or such shorter period of time as agreed by the Administrative Agent may agree to in its sole discretionAgent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. Each such notice shall specify the date (each, propose an “Increase Effective Date”) on which the Borrower proposes that the Incremental Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. The Borrower may, but is not required to, specify any fees offered to those Lenders that agree to increase the Aggregate principal amount of their Revolving Commitments (each, an “Incremental Increasing Lender”, and collectively, the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation obligation, express or implied, to extend offer to increase the aggregate principal amount of its Revolving Commitment, and any Incremental Facility.
(b) The Borrowers may designate decision by a bank or Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other financial institution (which may be, but need not be, one or more Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing LendersRevolving Commitment as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent and the Issuing Banks (such approval not to be unreasonably withheld or delayed) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an “Additional Lender”, and collectively, the “Additional Lenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitments. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Commitment among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitment of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental FacilityCommitment as the Administrative Agent may reasonably request; provided, andhowever, in no event shall the Borrower be required to deliver (A) any modifications to Mortgages (unless such modification is required by applicable law to preserve the validity or priority of such Mortgage or in order to ensure that the Mortgages continue to fully secure the Obligations), or (B) any title insurance endorsements or new title insurance policies or local counsel opinions with respect to such Incremental Commitment;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Lender’s Incremental Commitment, issued by the amount Borrower in accordance with Section 2.9; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Commitment and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Credit Agreement
Increase of Commitments; Additional Lenders. (a) A. So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers Borrower may, upon at least ten 45 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), ) propose to increase the Aggregate Revolving Commitments up to an amount not to exceed $150,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 30 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Loan Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Loan Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Loan Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers B. If any Lender shall not elect to increase its Revolving Loan Commitment pursuant to the paragraph above, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Loan Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In . The sum of the case increases in the Revolving Loan Commitments of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Lenders pursuant to this paragraph plus the Revolving Loan Commitments (other than any initial upfront fees paid to of the Additional Lenders extending such Incremental Revolving Commitment); andshall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(ii) C. An increase in the outstanding Revolving Loans and the Pro Rata Share aggregate amount of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Loan Commitments pursuant to this Section 2.22 2.10 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder of an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Loan Commitment is to be increased, setting forth the Incremental new Revolving Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Loan Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Loan Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(e) D. Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Loan Commitments added through such agreement and (ii) Schedule I 2.1 shall automatically be deemed amended to reflect the Revolving Loan Commitments of all Lenders after giving effect to the addition of such Revolving Loan Commitments.
(f) Each supplement or joinder agreement referred E. Upon any increase in the aggregate amount of the Revolving Loan Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.10 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Rate Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Section 4, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Loan Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in such proportion and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion its respective Revolving Loan Commitment bears to the aggregate Revolving Loan Commitments after giving effect to such increase.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuingcontinuing and the Borrower would be in pro forma compliance with the financial covenants set forth in Article VI after giving effect thereto, from time to time after the Restatement Effective Dateearlier of the Delayed Draw Term Loan Funding Date or the expiration date of the Delayed Draw Term Loan Availability Period, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new additional term loans (each, an “Incremental Revolving Commitment” or Term Loan”) by an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 (the amount of any such increase or the principal amount of any such Incremental Term Loan, the “Additional Commitment Amount”) and in a minimum amount of at least $3,000,000 or a larger multiple of $1,000,000. With respect to any increase in the aggregate over Aggregate Revolving Commitments or any Incremental Term Loans, each Lender shall have the term right for a period of this Agreement15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment or provide Incremental Term Loans by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. With respect to any Incremental Term Loan, (x) the final maturity date shall be no earlier than the latest Maturity Date for any then existing Term Loan, (y) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then existing Term Loan and (z) the Applicable Margin for the Incremental Term Loan shall not be more than 75 basis points (0.75%) more than the Applicable Margin with respect to any then existing Term Loan, unless the Applicable Margin for any then existing Term Loan is increased to the Applicable Margin for the Incremental Term Loan minus 75 basis points (0.75%). No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide any Incremental FacilityTerm Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment or provide any Incremental Term Loan Commitment within fifteen (15) days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment or provide any Incremental Term Loan Commitment.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment or to provide any Incremental Term Loan Commitment pursuant to subsection (a) of this Section 2.23, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and/or provide an Incremental Facility Term Loan Commitment, as applicable, and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments and/or the principal amount of Incremental Term Loans of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments and/or the principal amount of Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than or the establishment of any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Term Loan pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender providing an increased Revolving Commitment or Incremental Term Loan Commitment, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) hereof and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the increase in the Revolving Commitments and/or Incremental FacilityTerm Loan and such opinions of counsel for the Borrower with respect thereto as the Administrative Agent may reasonably request, and
(iii) a certificate of a Responsible Officer of it being understood that such supplement or joinder may provide for customary “certain funds provisions” as agreed to by the Borrowers Borrower and the Lenders providing an Incremental Term Loan Commitment to the effect that (A) extent the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect proceeds of such Incremental Term Loan are being used to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of fund any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Permitted Acquisition or permitted Investment.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five (5) Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So Subject to the terms and conditions of this Section 2.24, and so long as no Default or Event of Default has occurred and is continuing, the Borrower may, by written notice to the Administrative Agent from time to time after time, request an increase in the Restatement Effective DateAggregate Revolving Commitments or the aggregate amount of the Term Loan Commitments by an amount not to exceed $70,000,000 in the aggregate (the amount of any such increase, the Borrowers may“Additional Commitment Amount”), upon at least ten days’ written resulting in a sum of Aggregate Revolving Commitments and aggregate Term Loan Commitments of not greater than $200,000,000. Such notice shall set forth (i) the amount of the Additional Commitment Amount being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 (unless otherwise approved by the Administrative Agent)) and (ii) the date on which the Additional Commitment Amount is requested to become effective (which shall not be less than 30 days (or such shorter period of time as the Administrative Agent may agree agree) nor more than 60 days after the date of such notice).
(b) For a period of ten Business Days following receipt of such notice, each Revolving Loan Lender or Term Loan Lender, as applicable, shall have the right to in its sole discretion) elect by written notice to the Borrower and the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase its Revolving Commitment or Term Loan Commitment by a principal amount equal to its Pro Rata Share of the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or Term Loan Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment or Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(bc) The Borrowers If any Lender shall not elect to increase its Revolving Commitment or Term Loan Commitment pursuant to subsection (a) of this Section 2.24, the other Lenders may increase their Revolving Commitments or Term Loan Commitments by an aggregate amount up to such unsubscribed Revolving Commitment or Term Loan Commitment. If the other Lenders choose not to subscribe to the entire amount, then the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facilitybecome a party to this Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed.
. The sum of the increases in either the Revolving Commitments or the Term Loan Commitments of the existing Lenders pursuant to this subsection (c) In plus the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to of the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) shall not in the outstanding Revolving Loans and aggregate exceed the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the unsubscribed amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such CommitmentsAdditional Commitment Amount.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (JTH Holding, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate principal amount of the Revolving Commitments and/or establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increase or additional tranche, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $500,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”), and each such Incremental Commitment shall be in a minimum amount of $10,000,000 or increments of $5,000,000 in excess thereof;
(ii) [Reserved];
(iii) at the time of and immediately after giving effect to any such Incremental Commitment, (x) no Default or Event of Default shall exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such earlier date); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that the only representations and warranties the making of which shall be a condition to such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (I) the Specified Representations and (II) the representations and warranties made by or on behalf of the applicable target in the purchase, acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has occurred the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Affiliates’ or Subsidiaries’) obligations under such purchase, acquisition or other agreement as a result of a breach of such representations or warranties in such purchase, acquisition or other agreement (or the failure of such representations or warranties to be accurate or to satisfy the closing conditions in such purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”) and (z) to the extent there is continuinga condition that no Material Adverse Effect exists as of the date of the initial funding of such Incremental Commitment, from such condition shall be limited to the target of such Acquisition or Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans” and, the commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the time such Incremental Term Loans are incurred and shall have a Weighted Average Life to time Maturity no shorter than that of any previously established Incremental Term Loans (without giving effect to previous reductions in and previously made amortization payments on such previously established Incremental Term Loans), and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such Incremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the Restatement Effective Dateestablishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be in compliance with each of the Financial Covenants, calculated (x) in the case of Incremental Term Loan Commitments, on the date the Incremental Term Loans provided thereunder are funded or (x) in the case of Incremental Revolving Commitments, on the date such Incremental Revolving Commitments become effective, in each case, as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of such date, as applicable (including giving effect to the use of proceeds thereof on such date and to any Acquisition consummated after the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or Section 5.1(b) and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Borrowers may, upon Lenders providing such Incremental Commitment may agree that such pro forma compliance shall be tested as of the date of the execution of the definitive documentation with respect to such Acquisition.
(b) The Borrower shall provide at least ten days(10) Business Days’ written notice (or such shorter period of time as may be agreed to by the Administrative Agent may agree to in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or the establishment of a tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender and (y) not to be unreasonably withheld) and the Borrower as additional Lenders hereunder in accordance with this Section (the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Lenders”); provided that , which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the aggregate amount allocation of all such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not exceed $50,000,000 in the aggregate over exceed the term unsubscribed amount of this Agreement. No Lender shall have any obligation to extend any the Incremental FacilityCommitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility an originally executed copy of an instrument of joinder (each, an “Additional LenderIncremental Commitment Joinder”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated executed by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt Agent, by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred If any Incremental Term Loan Commitments are to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments be established pursuant to this Agreement and the Section, other Loan Documents than as may set forth herein, all terms with respect thereto shall be necessary, as set forth in the reasonable opinion applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent and the Borrowers, Borrower are expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Revolving Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the provision requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section 2.22Section, amendments to ensure pro rata allocations of Eurodollar Loans and for the avoidance of doubt, Base Rate Loans between Loans incurred pursuant to this Section 2.22 and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions of Sections 2.20 in Section 2.21 or 11.2 Section 10.2 to the contrary.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all the Aggregate Revolving Commitments shall not exceed $200,000,000 (the “Maximum Commitment Amount”) after any incremental increase hereunder;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist, all representations and is continuingwarranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, from time to time after in which case such representations and warranties shall be true and correct in all respects), and, since the Restatement Effective Closing Date, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Borrowers mayRevolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the Financial Covenants as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, upon calculated as if all such Incremental Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance; and
(vi) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. Each Lender that agrees to increase the principal amount of its Revolving Commitment (an “Increasing Lender”) shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), propose which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to increase adjust the allocation of such Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that of the aggregate amount of all Incremental existing Lenders plus the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not exceed $50,000,000 in the aggregate over exceed the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityMaximum Commitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility (eachan originally executed copy of an instrument of joinder, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated executed by the Administrative Agent on Agent, the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in clauses (i), (iii) and (v) of subsection (a) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments issued by the amount Borrower in accordance with Section 2.10(b); and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fe) Each supplement or joinder If any Incremental Commitments are to have terms that are different from the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Borrower, without the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Commitments and the other Loan Documents Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Commitments under this Section, regardless of whether such Incremental Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as may be necessarybetween the Incremental Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $15,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2014, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and is continuingshall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, from time and (y) any incremental Revolving Commitments provided pursuant to time after this Section (the Restatement Effective Date“Incremental Revolving Commitments”) shall be structured as an increase to the existing Revolving Commitments and shall be on the same terms (including pricing and termination date) as the existing Revolving Commitments and Revolving Loans, except that Up- Front Fees with respect to Incremental Revolving Commitments may be higher or lower than the Borrowers mayUp-Front Fees paid with respect to the existing Revolving Commitments; provided that to the extent that the Up-Front Fees with respect to any Incremental Revolving Commitment exceed the Up-Front Fees with respect to the existing Revolving Commitments by more than 2.00%, upon additional fees shall be paid to the Revolving Lenders with respect to the existing Revolving Commitments in an amount equal to (A) the difference between the percentage of Up-Front Fees with respect to such Incremental Revolving Commitment and the percentage of Up-Front Fees with respect to the existing Revolving Commitments and (B) 2.00%;
(v) (A) the Leverage Ratio shall not exceed the lesser of (x) 3.00:100 and (y) the then required Leverage Ratio set forth in Section 6.1 and (B) the Borrower and its Subsidiaries shall otherwise be in pro forma compliance with each of the financial covenants set forth in Article VI, in each case, as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the Applicable Margin then in effect for Eurodollar Loans, plus an amount (expressed as a percentage) equal to (A) the Up-Front Fees paid in respect of any existing Term Loans divided by (B) an amount equal to (x) the original principal amount of such existing Term Loans divided by (y) 4 (the “Existing Yield”), then each Pricing Level set forth in the Pricing Grid in Applicable Margin with respect to such existing Term Loans and the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis;
(viii) except as set forth in clauses (iv) and (vi) above, any Incremental Term Loan shall be on terms consistent with the existing Term Loans; and
(ix) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or their Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or its Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an “increase in the aggregate principal amount of the Revolving Commitments and/or the Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Term Loan Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or its Term Loan Commitment, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) and, with respect to any Incremental Revolving Commitment” or an “Incremental Facility”, the Issuing Bank and Swingline Lender (such approval not to be unreasonably withheld); provided that , as additional Lenders hereunder in accordance with this Section (the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loan Commitments of the Increasing Lenders plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder If any Incremental Term Loans are to have terms that are different from the Term Loans outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non- Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to in clause (d)(i) above may, without the consent effectiveness of the Non- Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.9 shall be ratably increased after the making of any Incremental Term Loans (other Lendersthan Term Loans that are Non-Conforming Credit Extensions) under this Section to account for the principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions, effect all optional prepayments of Term Loans shall be allocated ratably between the then- outstanding Term Loans and such amendments Non-Conforming Credit Extensions. Notwithstanding anything to this Agreement and the other Loan Documents as may be necessarycontrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the Borrowers, requirements in the preceding two sentences and amendments to effect the provision ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence).
(e) For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of (A) all such Incremental Commitments made pursuant to this Section shall not exceed the greater of (I) $80,000,000 and (II) an unlimited amount so long as the Consolidated Total Net Leverage Ratio is less than 2.90:1.00 calculated on a pro forma basis after giving effect to the incurrence of such Incremental Commitments (and assuming the aggregate amount of such Incremental Commitments, including all Incremental Revolving Commitments, have been fully funded) and the use of the proceeds thereof (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”) and (B) all Incremental Revolving Commitments (as defined below) made pursuant to this Section shall not exceed $50,000,000;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2018, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and is continuingshall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, from time and (y) any incremental Revolving Commitments provided pursuant to time after this Section (the Restatement Effective Date“Incremental Revolving Commitments”) shall have terms that are identical to the existing Revolving Commitments (except for the amount thereof) and the Revolving Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the Borrowers mayfirst day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for existing Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), upon then the Applicable Margin of all existing Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield;
(vii) any collateral securing any such Incremental Commitments (and Incremental Term Loans) shall also secure all other Obligations on a pari passu basis; and
(viii) all other terms and conditions with respect to any such Incremental Commitments (and Incremental Term Loans) shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or their Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all Incremental its Revolving Commitments Commitment and/or its Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loan Commitment shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term of Revolving Commitments and/or the Term Loan Commitments, as applicable, pursuant to this AgreementSection. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Term Loan Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have any obligation declined to extend any Incremental Facility.
(b) increase its Revolving Commitment and/or its Term Loan Commitment, as applicable. The Borrowers Borrower may designate a bank in its sole discretion accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts, reject the offered amounts entirely (in which case the proposed Incremental Commitment shall be deemed withdrawn and of no force or effect) or designate new lenders that are acceptable to extend the Administrative Agent (such Incremental Facility approval not to be unreasonably withheld) and otherwise permitted under Section 10.4(b) as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loan Commitments of the Increasing Lenders plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the Borrowers to the effect that conditions in subsection (Aa) of this Section has been satisfied and each of the conditions set forth in Section 4.2(a3.2 have been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and (b) substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be satisfied before and after giving adjusted to give effect to the incurrence of Incremental Revolving Commitments and/or the Incremental Facility Term Loans, as applicable, and Schedule II shall automatically be deemed amended accordingly.
(Bd) after giving effect If any Incremental Term Loans are to have terms that are different from the Term Loans outstanding immediately prior to such increase and the payment of incurrence (any related feessuch Incremental Term Loans, the Borrowers would “Non-Conforming Credit Extensions”), all such terms shall be in compliance on a pro forma basis with the covenants as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 8.4 2.9 shall be ratably increased after the making of any Incremental Term Loans (other than Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions that are Term Loans, all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Section, the Borrower shall, after giving such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any Borrowings increase pursuant to be made on this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the date that requirements in the Incremental Facility becomes effectivepreceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and deeming Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any Incremental Revolving Commitment such incurrence and amendments to be fully drawn for purposes implement ratable participation in Letters of calculating such complianceCredit).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that (a) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Borrower set forth in the Borrowers Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $100,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving . All Additional Commitments shall not exceed $50,000,000 in have the aggregate over same terms and conditions applicable to the term Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of this Agreement20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount equal to the Additional Commitment Amount, subject to allocations agreed by the Borrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”)) to become a party to this Agreement; provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the provision of Lenders in proportion to their respective Commitments after giving effect to such increase. Prepayments made under this Section 2.22, and for the avoidance of doubt, this Section 2.22 2.21(e) shall supersede any provisions of Sections 2.20 or 11.2 not be subject to the contrarynotice requirements of Section 2.9.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers may, upon at least ten days’ written #4827-9295-4127 #PageNum# notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment”) and/or incur an incremental term loan (an “Incremental Term Loan” or and collectively with any Incremental Revolving Commitment, an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loans shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In in the case of each Incremental Term Loan:
(i) such Incremental Term Loan will mature no earlier than the Term Loan Maturity Date and will not have a shorter average life to maturity than the remaining average life to maturity of the Initial Term Loans;
(ii) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Borrowers and the lenders of such Incremental Term Loan; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the Applicable Margin in respect of such Initial Term Loan is equal to the Applicable Margin for the Incremental Term Loan minus 0.50%; provided further, in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loan, (1) 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 or such lesser remaining life to maturity (if less than four years)) payable by the Borrowers to the Lenders under such Incremental Term Loan or the Initial Term Loan in the initial primary syndication thereof shall be deemed to constitute additional Applicable Margin, (2) if such Incremental Term Loan includes any LIBOR or Base Rate “floor”, and such floor is applicable to the Incremental Term Loan on the date of determination, then such applicable amount shall be equated to Applicable Margin and (3) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Initial Term Loan or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall be excluded from such calculation;
(iii) except as expressly provided above, the terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent and the Borrowers; and #4827-9295-4127 #PageNum#
(iv) the terms and conditions of any Incremental Term Loan, taken as a whole, shall not be materially more favorable to the Additional Lenders extending such Incremental Term Loan than the terms and conditions, taken as a whole, of the Initial Term Loans, except as expressly provided above.
(d) in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(de) An Incremental Revolving Commitment or an Incremental Term Loan pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments and/or Incremental Term Loans of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a), (b) and (bc) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers Borrower would be in compliance on a pro forma basis Pro Forma Basis with the covenants set forth in Section 8.4 ARTICLE VII (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(ef) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement, (ii) the Term Loans shall automatically be increased by the amount of the Incremental Term Loan added #4827-9295-4127 #PageNum# through such agreement and (iiiii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fg) Each supplement or joinder agreement referred to in clause (d)(ie)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers either Borrower may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate SBAC Revolving Commitments or the Aggregate SBF Revolving Commitments (each, an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 25,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers applicable Borrower may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing SBAC Revolving Commitments or SBF Revolving Commitments, as applicable (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding SBAC Revolving Loans and the Pro Rata Share of L/C Obligations or SBF Revolving Loans will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving applicable Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving applicable Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repaymentreallocation).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers applicable Borrower with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers applicable Borrower to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 6.17 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate SBAC Revolving Commitment Amount or the Aggregate SBF Revolving Commitment Amount, as applicable, shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary. As of the Second Amendment Effective Date, after giving effect to the transactions contemplated by the Second Amendment, the amount available for any Increment Facility is $0.
Appears in 1 contract
Samples: Credit Agreement (Tiptree Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments Commitment by an amount not to exceed $100,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its pro rata share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Loan Papers, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.20, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.20 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule Annex I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.20 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Floating Rate Loans then outstanding, and at the end of the then current Interest Period (or such date as the Administrative Agent and may elect if an Event of Default has occurred) with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article IV, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 1 contract
Samples: Revolving Credit Agreement (Bok Financial Corp Et Al)
Increase of Commitments; Additional Lenders. (a) So long Borrowers may increase, upon the request of Borrower Agent, the then effective amount of the Aggregate Revolving Credit Commitment; provided that: (i) the principal amount of the increases in the Aggregate Revolving Credit Commitment pursuant to this Section 2.16, shall not exceed $50,000,000; (ii) Borrowers shall execute and deliver such documents and instruments and take such other actions as may be required by Agent in connection with such increases and at the time of any such proposed increase; (iii) no Default or Event of Default has shall have occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (be continuing or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the payment Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of any related feesthe date of such increase or, to the extent such representations and warranties expressly relate to an earlier date, true and correct in all material respects on and as of such earlier date; (iv) the Incremental Revolving Credit Commitments provided under this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date; (v) Borrowers would shall be in pro forma compliance with the Financial Covenant as of the most recently ended Fiscal Quarter for which Financial Statements have been delivered (regardless of whether or not then tested), calculated as if such Incremental Revolving Credit Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance]; and (vi) all other terms and conditions with respect to the Incremental Revolving Credit Commitments shall, except with respect to All-In Yield (which shall be subject to clause (d) below), be identical to those applicable to the Revolving Credit Commitments or otherwise satisfactory to Agent.
(b) Agent shall invite each Lender to increase the principal amount of its Revolving Credit Commitment, on a pro forma basis rata basis, in connection with the covenants set forth proposed Incremental Revolving Credit Commitments at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent to become a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 8.4 2.16. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lenders agreeing to increase their Revolving Credit Commitments (after giving effect the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Revolving Credit Commitments, as applicable, as a result thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section 2.16, any Borrowings increase requested by Borrowers shall be effective upon delivery to Agent of each of the following documents (the date of such effectiveness, the “Increase Date”): (i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to Agent; (ii) a notice to the Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to Agent, signed by a Responsible Officer of Borrower Agent; (iii) a certificate of Borrower Agent signed by a Responsible Officer, in form and substance acceptable to Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that Agent shall request, each in form and substance satisfactory to Agent.
(d) Anything to the contrary contained herein notwithstanding, the All-In Yield that is to be applicable to the Loans to be made on the date that pursuant to the Incremental Facility becomes effective, and deeming any Revolving Credit Commitments shall be equal to or higher than the All-In Yield applicable to the Loans hereunder immediately prior to the Increase Date; provided that if the All-In Yield that is to be applicable to the Loans to be made pursuant to the Incremental Revolving Commitment Credit Commitments is higher than the All-In Yield applicable to be fully drawn for purposes of calculating such compliancethe Loans hereunder immediately prior to the Increase Date (the amount by which the All-In Yield is higher, the “Excess”).
(e) Upon , then the acceptance of any such agreement by interest margin applicable to the Administrative Agent, (i) Loans immediately prior to the Aggregate Revolving Commitment Amount Increase Date shall automatically be increased by the amount of the Incremental Excess, subject to the occurrence of and effective upon the Increase Date and without the necessity of any action by any party hereto.
(e) Each of the Lenders having a Revolving Commitments added through Credit Commitment prior to the Increase Date (the “Pre-Increase Revolving Credit Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Date (the “Post- Increase Revolving Credit Lenders”), and such agreement Post-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount thereof, such interests in the Revolving Credit Loans and (ii) Schedule I participation interests in Swingline Loans and undrawn Letters of Credit on such Increase Date as shall automatically be deemed amended to reflect the Commitments of all Lenders necessary in order that, after giving effect to the addition all such assignments and purchases, such Revolving Credit Loans and participation interests in Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in accordance with their Pro Rata Shares after giving effect to such increased Revolving Credit Commitments.
(f) Each supplement or joinder agreement referred to Unless otherwise specifically provided herein, all references in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the any other Loan Documents as may Document to Loans shall be necessarydeemed, in unless the reasonable opinion of the Administrative Agent and the Borrowerscontext otherwise requires, to effect include Loans made pursuant to the provision of Incremental Revolving Credit Commitments pursuant to this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary2.16.
Appears in 1 contract
Samples: Credit Agreement (Team Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed $200,000,000 (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental any such increase, the "Additional Commitment Amount"). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitments shall not exceed $50,000,000 in Commitment by a principal amount equal to its Pro Rata Share of the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (an "Additional Lender"), become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule Annex I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Samples: Revolving Credit Agreement (Swift Transportation Co Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Class A Revolving Lender), propose to increase the Aggregate Class A Revolving Commitments (Committed Amount by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall incremental commitments not to exceed $50,000,000 in 100,000,000 (the aggregate over amount of any such increase, the term “Additional Commitment Amount”), through the addition of this Agreementnew lenders (or increases of commitments by existing Class A Revolving Lenders), provided that any such new lenders are reasonably acceptable to the Agent, the Syndication Agent, and the Borrower. Each Class A Revolving Lender shall have the right for a period of 10 days following receipt of such notice, to elect by written notice to the Borrower and the Agent to increase its Class A Revolving Commitment by a principal amount up to its Class A Revolving Commitment Percentage of the Additional Commitment Amount. No Class A Revolving Lender (or any successor thereto) shall have any obligation to extend increase its Class A Revolving Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Class A Revolving Lender to increase its Class A Revolving Commitment shall be made in its sole discretion independently from any other Lender. Neither the Class B Revolving Committed Amount nor any Class B Revolving Commitment shall be increased pursuant to this Section 2.3.
(b) The Borrowers If any Class A Revolving Lender shall not elect to increase its Class A Revolving Commitment pursuant to subsection (a) of this Section 2.3, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Class A Revolving Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Class A Revolving Lender, increase its Class A Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Class A Revolving Commitments of the existing Class A Revolving Lenders pursuant to this subsection (b) plus the Class A Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Class A Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.3 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Class A Revolving Lender whose Class A Revolving Commitment is to be increased, setting forth the Incremental new Class A Revolving Commitments of such Class A Revolving Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
, together with Notes (iito the extent requested by the applicable Lenders) evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Class A Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Class A Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Committed Amount shall automatically be increased by the amount of the Incremental Class A Revolving Commitments added through such agreement supplement or joinder and (iiSchedule 2.1(a) Schedule I shall automatically be deemed amended to reflect the Class A Revolving Commitments of all Lenders after giving effect to the addition of such Class A Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Class A Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.3 that is not pro rata among all Class A Revolving Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Class A Revolving Loans that are Prime Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Class A Revolving Loans that are Eurodollar Loans then outstanding, the Borrower shall prepay such Class A Revolving Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article 5, the Borrower shall reborrow Class A Revolving Loans from the Lenders in proportion to their respective Class A Revolving Commitments after giving effect to such increase, until such time as all outstanding Class A Revolving Loans are held by the Class A Revolving Lenders in proportion to their respective Class A Revolving Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long After the first anniversary of the Closing Date, the Parent may request that the then effective aggregate principal amount of the Term Loan Commitments be increased; provided that (i) the aggregate principal amount of the increases in the Term Loan Commitments pursuant to this Section 2.14 shall not exceed $20,000,000; (ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by Administrative Agent in connection with such increases and at the time of any such proposed increase; (iii) no Default or Event of Default has shall have occurred and is continuingbe continuing or would occur after giving effect to such increase, from time all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (without duplication of materiality qualifiers in the case of those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality) on and as of the date of such increase or, to time the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date; (iv) the incremental Term Loans made under this Section 2.14 (“Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date for the Term Facility, and shall have a Weighted Average Life to Maturity no shorter than the Term Loans made under Section 2.01(a); (v) after the Restatement Effective Dategiving effect to any Incremental Term Loans, the Borrowers mayshall be in compliance on a Pro Forma Basis with each of the financial covenants specified in Section 7.14, upon and the Total Leverage Ratio shall be lower than the lesser of (A) 2.95:1.00 and (B) the maximum ratio permitted under Section 7.14, adjusted by reducing the numerator of such ratio by 0.25, in each case as of the most recently ended fiscal quarter for which financial statements have been delivered, calculated as if such Incremental Term Loans had been made as of the first day of the relevant period for testing compliance after giving effect to the borrowing of such Incremental Term Loans; (vi) the terms (other than maturity, amortization and pricing) of any Incremental Term Loans shall be identical to those of the Term Loans made under Section 2.01(a), and if the All-In Yield applicable to any Incremental Term Loans exceeds the All-In Yield of the Term Loans existing at least ten days’ written notice such time by more than 50 basis points, then the interest rate margins for the Term Loans existing at such time shall be increased to the extent necessary so that the All-In Yield of such Term Loans is equal to the All-In Yield of such Incremental Loans minus 50 xxxxx xxxxxx, (or such shorter period xxx) the proceeds of time as any Incremental Term Loans may be used only to fund Permitted Acquisitions, other Investments permitted hereunder, and Capital Expenditures permitted hereunder and (viii) all other terms and conditions with respect to the Incremental Term Loans shall be reasonably satisfactory to Administrative Agent. The Parent may also, but is not required to (except that the Parent shall so notify the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each LenderAgent), propose specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate principal amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in their Term Loan Commitments, which fees may be variable based upon the aggregate over amount by which any such Lender increases the term principal amount of this Agreementits Term Loan Commitment. No Lender shall have any obligation obligation, express or implied, to extend any Incremental Facilityoffer to increase the aggregate principal amount of its Term Loan Commitment.
(b) The Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Term Loan Commitments, pursuant to this Section 2.14. No Lender which declines to increase the principal amount of its Term Loan Commitment may be replaced in respect to its existing Term Loan Commitment, as applicable, as a result thereof without such Lender’s consent.
(c) Each Increasing Lender shall as soon as practicable specify the amount of the proposed increase that it is willing to assume. Subject to subsection (a)(5) above, the Borrowers may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to Administrative Agent (such approval not to be unreasonably withheld) to extend as additional Lenders hereunder in accordance with this Section 2.14 (each such Incremental Facility (each, new lender being an “Additional Lender”), which at Additional Lenders may assume all or a portion of the time agrees Incremental Term Loans. The Administrative Agent shall have discretion to extend such adjust the allocation of Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayedTerm Loans among Increasing Lenders and Additional Lenders.
(cd) In Subject to subsections (a) and (b) of this Section 2.14, any increase requested by the case Parent shall be effective upon delivery to Administrative Agent of each Incremental Revolving Commitmentof the following documents:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than an originally executed copy of any initial upfront fees paid instrument of joinder signed by a duly authorized officer of each Additional Lender, if any, in form and substance reasonably acceptable to the Additional Lenders extending such Incremental Revolving Commitment); andAdministrative Agent;
(ii) a notice to the outstanding Revolving Loans Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to Administrative Agent, signed by a Responsible Officer of the Pro Rata Share Parent; (iii) a certificate of L/C Obligations will be reallocated the Parent signed by a Responsible Officer, in form and substance reasonably acceptable to Administrative Agent, certifying that each of the conditions in subsection (a) of this Section 2.14 has been satisfied; (iv) to the extent requested by any Additional Lender or Increasing Lender, executed promissory notes evidencing the Incremental Term Loan issued by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) Borrowers in accordance with their revised Pro Rata Shares Section 2.09 and (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitmentv) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the other certificates or documents that Administrative Agent of:
(i) a supplement or joinder shall reasonably request, in form and substance reasonably satisfactory to Administrative Agent. Any such increase shall be in a principal amount equal to the sum of the principal amount of the Incremental Term Loans that the Increasing Lenders and Additional Lenders are willing to assume, as applicable, as adjusted by the Parent and Administrative Agent executed by pursuant to this Section 2.14. Upon effectiveness of any such increase, the Borrowers Commitments and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement Pro Rata Share of each Additional Lender will be adjusted to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect give effect to the Incremental FacilityTerm Loans, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)as applicable.
(e) Upon Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the acceptance of any other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such agreement by Commitment, if any, each Additional Lender, if any, and the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the . The Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersParent, to effect the provision provisions of this Section 2.22, and for 2.14. The Administrative Agent is expressly permitted to amend the avoidance of doubt, Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.22 2.14 and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences and amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.14 and Loans outstanding immediately prior to any such incurrence).
(f) This Section 2.14 shall supersede any provisions of Sections 2.20 in Section 2.11 or 11.2 10.01 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that (a) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Borrower set forth in the Borrowers Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $250,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving . All Additional Commitments shall not exceed $50,000,000 in have the aggregate over same terms and conditions applicable to the term Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of this Agreement20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount equal to the Additional Commitment Amount, subject to allocations agreed by the Borrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”)) to become a party to this Agreement; provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the provision of Lenders in proportion to their respective Commitments after giving effect to such increase. Prepayments made under this Section 2.22, and for the avoidance of doubt, this Section 2.22 2.21(e) shall supersede any provisions of Sections 2.20 or 11.2 not be subject to the contrarynotice requirements of Section 2.9.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Amendment and Restatement Effective Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to (i) increase the aggregate principal amount of the Revolving Commitments and/or (ii) establish one or more tranches of Incremental Term Loan Commitments hereunder (each such increase or additional tranche, an “Incremental Commitment” and the principal amount thereof, the “Incremental Commitment Amount”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed the sum of (A) the greater of (I) $44,000,000 and (II) 100% of Consolidated EBITDA for the most recently ended Test Period plus (B) additional amounts so long as the Leverage Ratio, calculated on a Pro Forma Basis (giving pro forma effect to the incurrence of such Incremental Commitments (and treating any unfunded Incremental Commitments as fully drawn) and any transactions entered into in connection therewith, including the incurrence or repayment of any Indebtedness and any Acquisitions) without netting the cash proceeds of the Incremental Term Loans or Revolving Loans made under such US-DOCS\151470090.12 Incremental Commitments or the proceeds of any other Indebtedness incurred substantially concurrently therewith, does not exceed 2.50:1.00;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) subject, in the case of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, to Section 1.5, at the time of and immediately after giving effect to any such Incremental Commitment, (x) no Event of Default shall exist; provided that (A) in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default under Section 8.1(a), (b), (g), (h) or (i) and (B) if the Borrower makes an LCA Election pursuant to Section 1.5 and such condition is tested as of the applicable LCA Test Date, it shall also be a condition that no Event of Default under Section 8.1(a), (b), (g), (h) or (i) shall have occurred and be continuing or would result from the Borrowers incurrence of such Incremental Term Loan (and related Term Loan Commitments) and the transactions consummated in connection therewith (including the incurrence of any Indebtedness and the use proceeds thereof) on the date on which such Incremental Term Loan (and related Incremental Term Loan Commitments) is incurred and the applicable Limited Condition Acquisition is consummated, and (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such earlier date); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that the only representations and warranties the accuracy of which shall be a condition to such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (I) the Specified Representations and (II) the representations and warranties made by or on behalf of the applicable target in the purchase, acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Affiliates’ or Subsidiaries’) obligations under such purchase, acquisition or other agreement as a result of a breach of such representations or warranties in such purchase, acquisition or other agreement (or the failure of such representations or warranties to be accurate or to satisfy the closing conditions in such purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”);
(iv) (x) any incremental term loans made pursuant to this Section (the “Incremental Term Loans” and, the commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the latest Maturity Date in effect at the time such Incremental Term Loans are incurred, if any Term Loans are then outstanding, shall have a Weighted Average Life to Maturity no shorter than that of any then-outstanding US-DOCS\151470090.12 Term Loans (without giving effect to previous reductions in and previously made amortization payments on such Term Loans) and shall otherwise have terms (other than (I) pricing and any representations, warranties, covenants and other provisions applicable only to periods after the latest Maturity Date hereunder at such time or (II) as are incorporated into the Loan Documents for the benefit of all existing Lenders (which, in the case of this subclause (II), may, upon if beneficial for the Lenders, be accomplished via an amendment to the existing Loan Documents entered into between the Borrower, the other Credit Parties and the Administrative Agent, without the consent of the Lenders)) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are reasonably satisfactory to the Administrative Agent, and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such Incremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to any existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis);
(v) subject, in the case of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, to Section 1.5, the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Test Period, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance (including giving effect to any Acquisitions on a Pro Forma Basis that are contemplated to be funded with such Incremental Term Loans or Incremental Revolving Commitments); and
(vi) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least ten (10) days’ written notice (or such shorter period of time as may be agreed to by the Administrative Agent may agree to in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the Incremental Term Loan Commitment such US-DOCS\151470090.12 Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an “Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for Incremental Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment, its existing Term Loan Commitment (if any) and/or its existing Term Loans (if any), as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender), the Borrower and, in the case of any Incremental Revolving Commitment” or an Commitments, each Issuing Bank (such approvals of the Administrative Agent, the Borrower and the Issuing Banks not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Incremental FacilityAdditional Lenders”); provided that , which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the aggregate amount allocation of all such Incremental Revolving Commitments and/or such Incremental Term Loans among the then-existing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not exceed $50,000,000 in the aggregate over exceed the term unsubscribed amount of this Agreement. No Lender shall have any obligation to extend any the Incremental FacilityCommitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility an originally executed copy of an instrument of joinder (each, an “Additional LenderIncremental Commitment Joinder”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated executed by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt Agent, by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the Borrowers conditions in subsection (a) of this Section has been satisfied; provided that, in the case of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to the effect that (A) finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section 4.2(athat are tested as of the applicable LCA Test Date shall be certified in the applicable LCA Election Certificate instead of the certificate delivered pursuant to this subsection (iii); US-DOCS\151470090.12
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and (b) substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be satisfied before and after giving adjusted to give effect to the incurrence of Incremental Commitments and/or the Incremental Facility and (B) after giving effect to such increase and the payment of any related feesTerm Loans, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effectiveas applicable, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan Commitments are to reflect be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the Commitments applicable Incremental Commitment Joinder, the execution and delivery of all Lenders after giving which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the addition requirements in the preceding sentence or the foregoing clause (a)(iv) of this Section, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) Any Incremental Commitment incurred pursuant to clause (a)(i)(A) above may be reclassified, as the Borrower elects by written notice to the Administrative Agent from time to time, as incurred under clause (a)(i)(B) above if the Borrower meets the applicable requirements set forth above under clause (a)(i)(B) at the time of such Commitmentsreclassification on a Pro Forma Basis.
(f) Each supplement or joinder agreement referred Unless otherwise elected by the Borrower, any Incremental Commitments shall be deemed to in be incurred pursuant to clause (d)(ia)(i)(B) above may, without (to the consent of extent there is capacity under clause (a)(i)(B) above) prior to any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this amounts being incurred under clause (a)(i)(A) above.
(g) This Section 2.22, and for the avoidance of doubt, this Section 2.22 2.23 shall supersede any provisions of Sections 2.20 in Section 2.21 or 11.2 10.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time on and after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy Agent, in the case of such notice to each Lender)any increase or addition after the Closing Date, propose to increase the Aggregate Revolving Commitments Committed Amount of one or more Lenders and/or new lenders that agree to such an increase or enter into one or more tranches of term loans (each an “Incremental Term Loan”) with one or more Lenders and/or new lenders that agree to extend such commitments or loans, in each case in minimum increments of $5,000,000 and with the aggregate amount of additional Revolving Commitment” or an Commitments and Incremental Term Loans not to exceed $25,000,000 (the amount of any such increase, the “Incremental FacilityAdditional Commitment Amount”); provided that any new lenders are reasonably acceptable to the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in Agent and the aggregate over the term of this AgreementBorrower. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or extend Incremental Term Loans or its other obligations under this Agreement and the other Credit Documents, and any decision by a Lender to increase its Revolving Commitment or extend Incremental FacilityTerm Loans shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers may designate a bank or other financial institution Any new lender designated by the Borrower pursuant to Section 2.3(a) (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution ) must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments and the aggregate principal amount of the Incremental Term Loans of the existing Lenders pursuant to this Section 2.3 plus the Revolving Commitments and Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than or any initial upfront fees paid to the Additional Lenders extending such extension of Incremental Revolving Commitment); and
(ii) the outstanding Revolving Term Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.3 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased or who is extending an Incremental Term Loan, setting forth the Incremental new Revolving Commitments or the aggregate principal amount of Incremental Term Loans of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
, together with Notes (iito the extent requested by the applicable Lenders) evidencing such increase in the Commitments or principal amount of Loans, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facilityincrease in the Commitments or principal amount of Loans, and
(iii) a certificate and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments or principal amount of Loans, as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments or the principal amount of the Loans shall automatically be increased by the amount of the Incremental Revolving Commitments or Incremental Term Loans added through such agreement supplement or joinder and (iiSchedule 2.1(a) Schedule I shall automatically be deemed amended to reflect the Revolving Commitments or Incremental Term Loans of all Lenders after giving effect to the addition of such CommitmentsRevolving Commitments or Incremental Term Loans.
(e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.3 that is not pro rata among all Revolving Lenders, (x) within five Business Days, in the case of any Revolving Loans that are Prime Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Revolving Loans that are Eurodollar Loans then outstanding, the Borrower shall prepay such Revolving Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 5, the Borrower shall reborrow Revolving Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Lenders in proportion to their respective Revolving Commitments after giving effect to such increase.
(f) Each supplement Any tranche of Incremental Term Loans extended in accordance with the terms hereof (i) shall rank pari passu in right of payment with the Revolving Loans and Revolving Commitments, and previously extended Incremental Term Loans, (ii) shall not mature earlier than the Revolving Termination Date, (iii) shall not have a shorter weighted average life to maturity than previously extended Incremental Term Loans, if any, and (iv) subject to the remainder hereof, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and previously extended Incremental Term Loans, as the case may be, provided that (A) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Revolving Termination Date may provide for material additional or joinder agreement referred different financial or other covenants or prepayment requirements applicable only after the Revolving Termination Date, (B) pricing for Incremental Term Loans may differ from pricing for any other Revolving Commitments or previously extended Incremental Term Loans (whether based on interest rate margins, original issue discount, upfront fees, or other similar fees); provided, however, that to the extent that the interest rate margins, upfront fees, original issue discount (calculated based on a five year life to maturity) and any Eurodollar Rate floor applicable to any Incremental Term Loan (“Proposed Pricing”) are at least 50 basis points greater, taken as a whole, than the interest rate margins, upfront fees, original issue discount (calculated based on a five year life to maturity) and the Eurodollar Rate floor, if any, then applicable to existing Revolving Commitments and Revolving Loans or previously extended Incremental Term Loans (“Existing Pricing”), the interest rate margins and any Eurodollar Rate floor for the existing Revolving Commitments and Revolving Loans and previously extended Incremental Term Loans, as applicable, shall be increased to an amount which results in clause Existing Pricing being 50 basis points less than the Proposed Pricing, (d)(iC) above if agreed to by the Borrower and the Lenders extending the applicable Incremental Term Loans, the representations, warranties, covenants and events of default to which such Incremental Term Loans are subject may be more permissive and less restrictive than the representations, warranties, covenants and events of default set forth in this Agreement or to which any other Incremental Term Loans are subject, (D) no Incremental Term Loan or any other extension of credit provided under this Section may be secured by any assets that do not secure the other Loans and Credit Party Obligations unless and until all Loans and Credit Party Obligations (including such Incremental Term Loans and other extensions of credit) are secured by such assets on a pari passu basis (with the understanding that such grant of additional collateral (including the documentation related thereto and the scope of the assets covered thereby) shall be approved by the Agent (such approval not to be unreasonably withheld, conditioned or delayed) prior to giving effect to any such grant), and (E) the Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Loan Amendment”) of this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each of the Lenders participating in such tranche, (whether a new Lender or existing Lender) and the Agent. The Incremental Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, to effect the provision provisions of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarySection.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So At any time before (x) the Revolving Commitment Termination Date or (y) the Bond Mandatory Put Date, as applicable, so long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers Borrower Representative may, upon at least ten 30 days’ written notice to the Administrative Agent (or such shorter period of time as the Administrative Agent may agree to consent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments and/or Bond Purchase Commitments by an aggregate amount not to exceed $500,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount , of all Incremental Revolving Commitments shall not exceed which up to $50,000,000 in may be applied to increase the aggregate over the term of this AgreementCanadian Revolving Commitments. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitments or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Commitments shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers Borrower Representative may designate a bank or the banks and other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (eachprovide the incremental Commitments; provided, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution that is not already a Lender (each, an “Additional Lender”) must be acceptable to the Administrative Agent, and, in the case of an increase in the Canadian Revolving Commitments, the Canadian Issuing Bank and the Canadian Funding Agent, and in the case of an increase in the US Revolving Commitments, the Swingline Lender and the US Issuing Bank, which acceptance acceptances will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitmentthe Commitments pursuant to this Section 4.17 shall be subject to the following conditions:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrowers, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, increase in the Commitments and such opinions of counsel for the Loan Parties with respect to the increase in the Commitments as the Administrative Agent may reasonably request;
(ii) the satisfaction of all conditions to each credit event set forth in Section 5.2; and
(iii) a certificate of a Responsible Officer the Borrowers shall be in compliance with each of the Borrowers to the effect that (A) the conditions financial covenants set forth in Section 4.2(a) and (b) will be satisfied before and Article VIII after giving effect to the incurrence of the Incremental Facility and (B) after giving pro forma effect to such increase in Commitments (assuming such incremental Commitments are fully funded for purposes of this clause).
(d) Any Additional Commitment Amount in respect of Revolving Commitments shall be on the same terms (including as to pricing and maturity dates) as the Revolving Commitments in effect on the Closing Date, except that upfront fees on such additional Revolving Commitments may be different than the upfront fees on the Revolving Commitments in effect on the Closing Date. Any Additional Commitment Amount in respect of a Bond Purchase Commitment shall be on terms consistent with the Bond Purchase Commitments in effect on the Closing Date, except that (x) upfront fees on such additional Bond Purchase Commitment may be different than the upfront fees on the Bond Purchase Commitments in effect on the Closing Date, and interest rates on such additional Bonds shall not exceed the equivalent amounts applicable to the Bonds of the equivalent type purchased on the Closing Date by more than 0.50% per annum, (y) the final Bond Mandatory Put Date for any new series of Bonds purchased thereunder may be later than the Bond Mandatory Put Date for the Bonds purchased on the Closing Date and (z) the weighted average life to maturity of any new series of Bonds purchased thereunder may be later than the weighted average life to maturity of the Bonds purchased on the Closing Date. The proceeds of such additional Bond Purchase Commitment must be used to purchase additional Tax-Exempt Bonds acceptable to the Administrative Agent and the payment Bond Purchasers in respect of any related feessuch additional Bond Purchase Commitment. Each such Additional Commitment Amount, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made shall, on the date of the effectiveness of the applicable increase, be added to the then existing Commitments, and, except as provided in this clause (d), all extensions of credit pursuant thereto shall have the same terms as those that apply to the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment extensions of credit pursuant to be fully drawn for purposes of calculating such compliance)the existing Commitments.
(e) Upon the acceptance of any such agreement supplement or joinder referred to in clause (c) above by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount or Aggregate Bond Purchase Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such CommitmentsCommitments (and upon request of any party, the Administrative Agent will promptly circulate the updated Schedule II to all parties hereto).
(f) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the US Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 4.17 that is not pro rata among all US Revolving Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five (5) Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the US Borrower shall prepay such Loans in their entirety and, to the extent the US Borrower elects to do so and subject to the conditions specified in Article V, the US Borrower shall reborrow US Revolving Loans from the US Lenders in proportion to its respective US Revolving Commitments after giving effect to such increase, until such time as all outstanding US Revolving Loans are held by the provision US Revolving Lenders in proportion to their respective US Revolving Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each US Revolving Lender in each US Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the US Revolving Lenders shall hold participations in each such US Letter of Credit in proportion to their respective US Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Canadian Revolving Commitments pursuant to this Section 2.224.17 that is not pro rata among all Canadian Lenders, and for (x) within five (5) Business Days, in the avoidance case of doubtany Canadian Prime Rate Loans then outstanding, this Section 2.22 the Canadian Borrowers shall supersede any provisions of Sections 2.20 or 11.2 prepay such Loans in their entirety and, to the contraryextent the Canadian Borrowers elect to do so and subject to the conditions specified in Article V, the Canadian Borrowers shall reborrow Loans from the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase, until such time as all outstanding Canadian Prime Rate Loans are held by the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Canadian Lender in each Canadian Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Canadian Lenders shall hold participations in each such Canadian Letter of Credit in proportion to their respective Canadian Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (Maximum Commitment Amount by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 in (the aggregate over amount of any such increase, the term “Additional Commitment Amount”). Each Lender shall have the right for a period of this Agreement15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Maximum Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Maximum Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Maximum Commitment shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Maximum Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Maximum Commitment.
(b) The Borrowers If any Lender shall not elect to increase its Maximum Commitment pursuant to subsection (a) of this Section 2.22, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Maximum Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Maximum Commitments of the existing Lenders pursuant to this subsection (b) plus the Maximum Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Maximum Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Maximum Commitment is to be increased, setting forth the Incremental Revolving new Maximum Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) hereof and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Maximum Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Maximum Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Maximum Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Maximum Commitments added through such agreement supplement or joinder and (ii) Schedule I II shall automatically be deemed amended to reflect the Maximum Commitments of all Lenders after giving effect to the addition of such Maximum Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Maximum Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.22 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Maximum Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Maximum Commitments.
Appears in 1 contract
Samples: Revolving Credit Agreement (Ram Energy Resources Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Initial Availability Date, the Borrowers Company may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose elect to increase the Aggregate Revolving Commitments (Credit Commitment Amount in an “Incremental Revolving Commitment” or an “Incremental Facility”); provided amount such that the aggregate amount of all Incremental Revolving Commitments Credit Commitment Amount (after giving effect thereto) shall not exceed $50,000,000 800,000,000 at any time in effect (the aggregate over amount of any such increase, the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility“Additional Commitment Amount”).
(b) The Borrowers Company may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lender and the Issuing Banks, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount. No Lender shall have any obligation whatsoever to agree to increase its Commitment.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.14 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrowers and Company, by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of by each Additional other Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
(ii) increased, together with such evidence of appropriate corporate authorization on the part of the Borrowers Company with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Company with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsbe updated.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.14 that is not pro rata among all Lenders, effect such amendments to this Agreement and (x) the other Loan Documents as may be necessaryBorrowers, in the reasonable opinion of the Administrative Agent and the BorrowersLenders shall as of the effective date of such increase make adjustments to the outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to such date), including, subject to the conditions specified in Section 4.2, the borrowing of additional Revolving Loans hereunder and the repayment of Revolving Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Commitments after giving effect to such increase, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have made an assignment of its outstanding Revolving Loans and Commitment, and assumed outstanding Revolving Loans and Commitments of other Lenders as of the effective date of such increase as may be necessary to effect the provision of this Section 2.22foregoing, and for (y) effective upon such increase, the avoidance amount of doubtthe unfunded participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold unfunded participations in each such Letter of Sections 2.20 or 11.2 Credit in the proportion its respective Commitment bears to the contraryaggregate Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers The Borrower may, upon at least ten 10 days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Revolving Term Loan Commitment” or ”) to make an incremental term loan (any such incremental term loan, an “Incremental FacilityTerm Loan”); provided , by an aggregate amount not to exceed the sum of (x) $150,000,000 and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the aggregate increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may be incurred under clause (y) of this Section 2.24(a) regardless of whether there is capacity under clause (x) hereof) (the amount of all Incremental Revolving Commitments any such increase or incremental term loan commitment (which shall not exceed be in minimum increments of $50,000,000 in 10,000,000), the aggregate over “Additional Commitment Amount”). In any event, no more than four (4) such elections shall be made during the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Facility Term Loan Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facilitybecome a party to this Agreement, if not already a Lender; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed.
. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) In plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of each Incremental a request to increase the Aggregate Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment)Commitments.
(d) An Incremental No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.22 2.24 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Revolving Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental FacilityTerm Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a certificate condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Subsidiaries) has the right to terminate the Borrower’s (or such Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a Responsible Officer breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the Borrowers failure of such representations or warranties to be true and correct or to satisfy the effect that (A) the closing conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect such Limited Condition Acquisition Agreement applicable to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliancerepresentations or warranties).
(ef) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(fg) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.24 that is not pro rata among all Revolving Loan Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent then current month with respect thereto, in the case of any Index Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the BorrowersAdditional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the provision Loans of this Section 2.22such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for the avoidance of doubt, any purposes under this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryAgreement.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $20,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent to give effect to any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2017, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and is continuingshall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, from time and (y) any incremental Revolving Commitments provided pursuant to time after this Section (the Restatement Effective Date“Incremental Revolving Commitments”) shall be structured as an increase to the existing Revolving Commitments and shall be on the same terms (including pricing and termination date) as the existing Revolving Commitments and Revolving Loans, except that Up- Front Fees with respect to Incremental Revolving Commitments may be higher or lower than the Borrowers mayUp-Front Fees paid with respect to the existing Revolving Commitments;
(v) the Borrower and its Subsidiaries shall otherwise be in pro forma compliance with each of the financial covenants set forth in Article VI, upon in each case, as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the Applicable Margin then in effect for Eurodollar Loans, plus an amount (expressed as a percentage) equal to (A) the Up-Front Fees paid in respect of any existing Term Loans divided by (B) an amount equal to (x) the original principal amount of such existing Term Loans divided by (y) 4 (the “Existing Yield”), then each Pricing Level set forth in the Pricing Grid in Applicable Margin with respect to such existing Term Loans and the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis;
(viii) except as set forth in clauses (iv) and (vi) above, any Incremental Term Loan shall be on terms consistent with the existing Term Loans; and
(ix) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 20 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or their Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 10 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or its Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an “increase in the aggregate principal amount of the Revolving Commitments and/or the Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Term Loan Commitment within 10 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or its Term Loan Commitment, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) and, with respect to any Incremental Revolving Commitment” or an “Incremental Facility”, the Issuing Bank and Swingline Lender (such approval not to be unreasonably withheld); provided that , as additional Lenders hereunder in accordance with this Section (the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loan Commitments of the Increasing Lenders plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder If any Incremental Term Loans are to have terms that are different from the Term Loans outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non- Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to in clause (d)(i) above may, without the consent effectiveness of the Non- Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.9 shall be ratably increased after the making of any Incremental Term Loans (other Lendersthan Term Loans that are Non-Conforming Credit Extensions) under this Section to account for the principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions, effect all optional prepayments of Term Loans shall be allocated ratably between the then- outstanding Term Loans and such amendments Non-Conforming Credit Extensions. Notwithstanding anything to this Agreement and the other Loan Documents as may be necessarycontrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the Borrowers, requirements in the preceding two sentences and amendments to effect the provision ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence).
(e) For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrowers and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or make new Term Loan Commitments (each an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist, all representations and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period warranties of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 Loan Party set forth in the aggregate over the term of this Agreement. No Lender Loan Documents shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments true and correct in all material respects (other than any initial upfront fees paid those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2015, there shall have been no change which has had or could reasonably be expected to the Additional Lenders extending such Incremental Revolving Commitment); andhave a Material Adverse Effect;
(iiiii) the outstanding Revolving (x) any incremental Term Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment made pursuant to this Section 2.22 (the “Incremental Term Loans”) shall become effective upon have a maturity date no earlier than the receipt by Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Administrative Agent of:Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(iiv) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by their Subsidiaries shall be in pro forma compliance with each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the financial covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments added through such agreement had been established (and (iifully funded) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and first day of the Borrowers, to effect the provision of this Section 2.22, and relevant period for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.testing compliance;
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Initial Availability Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose elect to increase the Aggregate Revolving Commitments Credit Commitment Amount up to a total amount not to exceed $1,000,000,000 at any time in effect (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers Borrower may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.14 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrowers and Borrower, by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of by each Additional other Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
(ii) increased, together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect be updated.
(e) Upon any increase in the aggregate amount of the Commitments of pursuant to this Section 2.14 that is not pro rata among all Lenders, (x) the Borrower shall prepay all outstanding Loans in their entirety, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and, to the extent the Borrower elects to do so and subject to the conditions specified in Article IV, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, and (y) effective upon such increase, the addition amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such Commitments.
(f) Each supplement or joinder agreement referred that, after giving effect to such adjustments, the Lenders shall hold participations in clause (d)(i) above may, without the consent each such Letter of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, Credit in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 proportion its respective Commitment bears to the contraryaggregate Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, Date and upon at least ten 20 days’ written notice to the Administrative Agent (or such shorter period of time as the Administrative Agent and Company may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lenderagree), propose the Company may elect to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate Credit Commitment Amount up to a total amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 800,000,000 at any time in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facilityeffect.
(b) The Borrowers Company may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative AgentAgent and/or the Swingline Lender (in each case, which acceptance will not be unreasonably withheld or delayed) if the consent of the Administrative Agent or the Swingline Lender, as the case may be, would be required to effect an assignment under Section 10.10(b). No Lender shall have any obligation whatsoever to agree to increase its Commitment.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.13 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrowers and Company, by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of by each Additional other Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
(ii) increased, together with such evidence of appropriate corporate authorization on the part of the Borrowers Company with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Company with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsbe updated.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.13 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessaryBorrowers, in the reasonable opinion of the Administrative Agent and the BorrowersLenders shall as of the effective date of such increase make adjustments to the outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to such date), including, subject to the conditions specified in Section 4.2, the borrowing of additional Revolving Loans hereunder and the repayment of Revolving Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Commitments after giving effect to such increase, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have made an assignment of its outstanding Revolving Loans and Commitment, and assumed outstanding Revolving Loans and Commitments of other Lenders as of the effective date of such increase as may be necessary to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryforegoing.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time on and after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy Agent, in the case of such notice to each Lender)any increase or addition after the Closing Date, propose to increase the Aggregate Revolving Commitments Committed Amount or the Term Loan Committed Amount of one or more Lenders that agree to such an increase or enter into one or more tranches of revolving commitments (“Incremental Revolving Commitments”) or additional Term Loans (each an “Incremental Term Loan”) with one or more Lenders and/or new lenders that agree to extend such commitments or loans, in each case in minimum increments of $25,000,000 and with the aggregate amount of additional Revolving Commitment” or an Commitments, Term Loan Commitments, Incremental Revolving Commitments and Incremental Term Loans not to exceed $100,000,000 (the amount of any such increase, the “Incremental FacilityAdditional Commitment Amount”); provided that any new lenders are reasonably acceptable to the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in Agent and the aggregate over the term of this AgreementBorrower. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment, increase its Term Loan Commitment, extend Incremental Revolving Commitments or extend Incremental Term Loans or its other obligations under this Agreement and the other Credit Documents, and any decision by a Lender to increase its Revolving Commitment, increase its Term Loan Commitment, extend Incremental FacilityRevolving Commitments or extend Incremental Term Loans shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers may designate a bank or other financial institution Any new lender designated by the Borrower pursuant to Section 2.3(a) (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution ) must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments and the Term Loan Commitments, the aggregate principal amount of the Incremental Revolving Commitments and the aggregate principal amount of the Incremental Term Loans of the existing Lenders pursuant to this Section 2.3 plus the Revolving Commitments, the Term Loan Commitments, Incremental Revolving Commitments and Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each the Revolving Commitments or Term Loan Commitments, any extension of Incremental Revolving Commitment:
(i) such Commitments or any extension of Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Term Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.3 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased or who is extending an Incremental Revolving Commitment or Incremental Term Loan, setting forth the new Revolving Commitments, the new Term Loan Commitments, the aggregate principal amount of Incremental Revolving Commitments or the aggregate principal amount of Incremental Term Loans of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
, together with Notes (iito the extent requested by the applicable Lenders) evidencing such increase in the Commitments or principal amount of Loans, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facilityincrease in the Commitments or principal amount of Loans, and
(iii) a certificate and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments or principal amount of Loans, as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments or the principal amount of the Loans shall automatically be increased by the amount of the Revolving Commitments, Term Loan Commitments, Incremental Revolving Commitments or Incremental Term Loans added through such agreement supplement or joinder and (iiSchedule 2.1(a) Schedule I shall automatically be deemed amended to reflect the Commitments Revolving Commitments, Term Loan Commitments, Incremental Revolving Commitments, or Incremental Term Loans of all Lenders after giving effect to the addition of such Revolving Commitments, Term Loan Commitments, Incremental Revolving Commitments or Incremental Term Loans.
(e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.3 that is not pro rata among all Revolving Lenders, (x) within five Business Days, in the case of any Revolving Loans that are Prime Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Revolving Loans that are Eurodollar Loans then outstanding, the Borrower shall prepay such Revolving Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 5, the Borrower shall reborrow Revolving Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Lenders in proportion to their respective Revolving Commitments after giving effect to such increase.
(f) Each supplement Any tranche of Incremental Revolving Commitments or joinder agreement referred Incremental Term Loans extended in accordance with the terms hereof (i) shall rank pari passu in right of payment with the Revolving Loans and Revolving Commitments, the Term Loans and previously extended Incremental Revolving Commitments and Incremental Term Loans, (ii) shall not mature earlier than either the Revolving Termination Date or the Term Loan Termination Date, (iii) in the case of any Incremental Term Loans, shall not have a shorter weighted average life to maturity than the Term Loans and previously extended Incremental Term Loans, and (iv) subject to the remainder hereof, shall be treated substantially the same as (and in clause any event no more favorably than) the Revolving Loans, the Term Loans and previously extended Incremental Revolving Commitments and Incremental Term Loans, as the case may be, provided that (d)(iA) above the terms and conditions applicable to any tranche of Incremental Revolving Commitments or Incremental Term Loans maturing after the Revolving Termination Date and the Term Loan Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only after the Revolving Termination Date and the Term Loan Termination Date, (B) pricing for Incremental Revolving Commitments or Incremental Term Loans may differ from pricing for any other Revolving Commitments or Term Loans (whether based on interest rate margins, original issue discount, upfront fees, or other similar fees); provided, however, that to the extent that the interest rate margins, upfront fees, original issue discount (calculated based on a four year life to maturity) and any Eurodollar Rate floor applicable to any Incremental Term Loan or Revolving Commitment and Revolving Loan made under an Incremental Revolving Commitment or Incremental Term Loan (“Proposed Pricing”) are at least 50 basis points greater, taken as a whole, than the interest rate margins, upfront fees, original issue discount (calculated based on a four year life to maturity) and the Eurodollar Rate floor, if any, then applicable to existing Revolving Commitments and Revolving Loans or Term Loans (“Existing Pricing”), the interest rate margins and any Eurodollar Rate floor for the existing Revolving Commitments and Revolving Loans or Term Loans, as applicable, shall be increased to an amount which results in Existing Pricing being 50 basis points less than the Proposed Pricing, (C) if agreed to by the Borrower and the Lenders extending the applicable Incremental Revolving Commitments and Incremental Term Loans, the representations, warranties, covenants and events of default to which such Incremental Revolving Commitments and Incremental Term Loans are subject may be more permissive and less restrictive than the representations, warranties, covenants and events of default set forth in this Agreement or to which any other Incremental Revolving Commitments or Incremental Term Loans are subject, (D) no Incremental Revolving Commitment or Incremental Term Loan or any other extension of credit provided under this Section may be secured by any assets that do not secure the other Loans and Credit Party Obligations unless and until all Loans and Credit Party Obligations (including such Incremental Revolving Commitments or Incremental Term Loans and other extensions of credit) are secured by such assets on a pari passu basis (with the understanding that such grant of additional collateral (including the documentation related thereto and the scope of the assets covered thereby) shall be approved by the Agent (such approval not to be unreasonably withheld, conditioned or delayed) prior to giving effect to any such grant), and (E) the Incremental Revolving Commitments or the Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Loan Amendment”) of this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each of the Lenders participating in such tranche, (whether a new Lender or existing Lender) and the Administrative Agent. The Incremental Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, to effect the provision provisions of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarySection.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (Agent, who shall promptly provide a copy of such notice to each Lender)notify the Lenders, propose to increase the Aggregate Revolving Commitments Commitment Amount up to an amount not to exceed $300,000,000 (an “Incremental the amount of any such increase, the "Additional Commitment Amount"). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment” or an “Incremental Facility”); provided Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. In the event that the aggregate amount to which the Lenders are willing to increase the Revolving Commitments is less than the Additional Commitment Amount based on the written notices delivered by the Lenders to the Administrative Agent, the Administrative Agent shall offer to the Lenders who have agreed to increase their Revolving Commitments the opportunity to further increase their Revolving Commitments up to an amount equal to the Additional Commitment Amount. Each such Lender shall promptly respond in writing to the Administrative Agent of whether it will agree to further increase its Revolving Commitment and by what amount it will agree to further increase its Revolving Commitment. Within five (5) Business Days after receipt of all Incremental responses from such Lenders, the Administrative Agent shall inform the Borrower and all Lenders in writing of the amount by which each Lender will increase its Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementCommitment. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Decisions to increase a Revolving Loan Commitment must be affirmatively communicated in writing and shall not be presumed based upon a failure to respond to Borrower's request.
(b) The Borrowers may designate a bank or other financial institution If the existing Lenders do not elect to increase the Aggregate Revolving Commitment Amount by the Additional Commitment Amount pursuant to subsection (which may bea) of this Section, but need not bethe Borrower shall have the right, within sixty days (60) after receipt of such notice from the Administrative Agent, to obtain additional Revolving Commitments from one or more of the existing Lenders) to extend such Incremental Facility other banks or financial institutions (each, an “"Additional Lender”)") to the extent necessary to increase the Aggregate Revolving Commitment Amount by the Additional Commitment Amount; provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution each Additional Lender must (i) be acceptable to the Administrative Agent and (ii) become a party to this Agreement pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent, which acceptance will . The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to subsection (a) plus the Revolving Commitments of the Additional Lenders shall not be unreasonably withheld or delayedin the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.4 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder of an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Administrative Agent may reasonably request. . Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule Annex I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fd) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.4 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in such proportion and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be deemed adjusted such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion its respective Revolving Commitment bears to the aggregate Revolving Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy and each of such notice to each Lender)the Lenders that the Borrower selects for participation, propose to increase the Aggregate Revolving Commitments to an amount not to exceed $1,000,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); . The Borrower may also invite one or more Eligible Assignees to become additional Lenders for all or any part of the Additional Commitment Amount provided that any new bank or financial institution must be reasonably acceptable to the aggregate Administrative Agent and shall execute a joinder agreement in form and substance satisfactory to the Administrative Agent. Each selected Lender (and Eligible Assignee, if applicable) shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount of all Incremental Revolving Commitments shall not exceed $50,000,000 the Additional Commitment Amount as indicated in the aggregate over the term of this Agreementsuch notice. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will . The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not be unreasonably withheld or delayedin the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Aggregate Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Revolving Commitments, and such evidence of appropriate corporate organizational authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long After the first anniversary of the Closing Date, the Parent may request that the then effective aggregate principal amount of the Term Loan Commitments be increased; provided that (i) the aggregate principal amount of the increases in the Term Loan Commitments pursuant to this Section 2.14 shall not exceed $20,000,000; (ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by Administrative Agent in connection with such increases and at the time of any such proposed increase; (iii) no Default or Event of Default has shall have occurred and is continuingbe continuing or would occur after giving effect to such increase, from time all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (without duplication of materiality qualifiers in the case of those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality) on and as of the date of such increase or, to time the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date; (iv) the incremental Term Loans made under this Section 2.14 (“Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date for the Term Facility, and shall have a Weighted Average Life to Maturity no shorter than the Term Loans made under Section 2.01(a); (v) after the Restatement Effective Dategiving effect to any Incremental Term Loans, the Borrowers mayshall be in compliance on a Pro Forma Basis with each of the financial covenants specified in Section 7.14, upon and the Total Leverage Ratio shall be lower than the lesser of (A) 2.95:1.00 and (B) the maximum ratio permitted under Section 7.14, adjusted by reducing the numerator of such ratio by 0.25, in each case as of the most recently ended fiscal quarter for which financial statements have been delivered, calculated as if such Incremental Term Loans had been made as of the first day of the relevant period for testing compliance after giving effect to the borrowing of such Incremental Term Loans; (vi) the terms (other than maturity, amortization and pricing) of any Incremental Term Loans shall be identical to those of the Term Loans made under Section 2.01(a), and if the All-In Yield applicable to any Incremental Term Loans exceeds the All-In Yield of the Term Loans existing at least ten days’ written notice such time by more than 50 basis points, then the interest rate margins for the Term Loans existing at such time shall be increased to the extent necessary so that the All-In Yield of such Term Loans is equal to the All-In Yield of such Incremental Loans minus 00 xxxxx xxxxxx, (or such shorter period xxx) the proceeds of time as any Incremental Term Loans may be used only to fund Permitted Acquisitions, other Investments permitted hereunder, and Capital Expenditures permitted hereunder and (viii) all other terms and conditions with respect to the Incremental Term Loans shall be reasonably satisfactory to Administrative Agent. The Parent may also, but is not required to (except that the Parent shall so notify the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each LenderAgent), propose specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate principal amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in their Term Loan Commitments, which fees may be variable based upon the aggregate over amount by which any such Lender increases the term principal amount of this Agreementits Term Loan Commitment. No Lender shall have any obligation obligation, express or implied, to extend any Incremental Facilityoffer to increase the aggregate principal amount of its Term Loan Commitment.
(b) The Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Term Loan Commitments, pursuant to this Section 2.14. No Lender which declines to increase the principal amount of its Term Loan Commitment may be replaced in respect to its existing Term Loan Commitment, as applicable, as a result thereof without such Lender’s consent.
(c) Each Increasing Lender shall as soon as practicable specify the amount of the proposed increase that it is willing to assume. Subject to subsection (a)(5) above, the Borrowers may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to Administrative Agent (such approval not to be unreasonably withheld) to extend as additional Lenders hereunder in accordance with this Section 2.14 (each such Incremental Facility (each, new lender being an “Additional Lender”), which at Additional Lenders may assume all or a portion of the time agrees Incremental Term Loans. The Administrative Agent shall have discretion to extend such adjust the allocation of Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayedTerm Loans among Increasing Lenders and Additional Lenders.
(cd) In Subject to subsections (a) and (b) of this Section 2.14, any increase requested by the case Parent shall be effective upon delivery to Administrative Agent of each Incremental Revolving Commitmentof the following documents:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than an originally executed copy of any initial upfront fees paid instrument of joinder signed by a duly authorized officer of each Additional Lender, if any, in form and substance reasonably acceptable to the Additional Lenders extending such Incremental Revolving Commitment); andAdministrative Agent;
(ii) a notice to the outstanding Revolving Loans Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to Administrative Agent, signed by a Responsible Officer of the Pro Rata Share Parent; (iii) a certificate of L/C Obligations will be reallocated the Parent signed by a Responsible Officer, in form and substance reasonably acceptable to Administrative Agent, certifying that each of the conditions in subsection (a) of this Section 2.14 has been satisfied; (iv) to the extent requested by any Additional Lender or Increasing Lender, executed promissory notes evidencing the Incremental Term Loan issued by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) Borrowers in accordance with their revised Pro Rata Shares Section 2.09 and (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitmentv) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the other certificates or documents that Administrative Agent of:
(i) a supplement or joinder shall reasonably request, in form and substance reasonably satisfactory to Administrative Agent. Any such increase shall be in a principal amount equal to the sum of the principal amount of the Incremental Term Loans that the Increasing Lenders and Additional Lenders are willing to assume, as applicable, as adjusted by the Parent and Administrative Agent executed by pursuant to this Section 2.14. Upon effectiveness of any such increase, the Borrowers Commitments and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement Pro Rata Share of each Additional Lender will be adjusted to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect give effect to the Incremental FacilityTerm Loans, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)as applicable.
(e) Upon Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the acceptance of any other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such agreement by Commitment, if any, each Additional Lender, if any, and the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the . The Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersParent, to effect the provision provisions of this Section 2.22, and for 2.14. The Administrative Agent is expressly permitted to amend the avoidance of doubt, Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.22 2.14 and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences and amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.14 and Loans outstanding immediately prior to any such incurrence).
(f) This Section 2.14 shall supersede any provisions of Sections 2.20 in Section 2.11 or 11.2 10.01 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made from time to time pursuant to this Section shall not result in the aggregate Revolving Commitments hereunder exceeding $140,000,000.00 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist, all representations and is continuingwarranties of each Credit Party set forth in the Loan Documents shall be true and correct in all material respects;
(iv) any Incremental Commitments provided pursuant to this Section shall be secured by the same collateral securing the pre-existing Revolving Commitments, from time terminate as of the Maturity Date and otherwise be subject to time after the Restatement Effective Datesame terms, conditions, and pricing as the Borrowers maypre-existing Revolving Commitments; provided, that (A) any commitment or upfront fees related thereto and payable to any applicable Increasing Lender or Additional Lender shall be as may be agreed to between the Borrower and any such party; and (B) any arrangement fees related thereto and payable to Arranger shall be as may be agreed to between Borrower and Arranger in connection with such Incremental Commitments (and the effectiveness of any such Incremental Commitments shall be conditioned upon the Arranger’s approval of such arrangement fees);
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Section 5.2 as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, and calculated as if all such Incremental Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) the Borrower may not request and receive more than two (2) incremental increases in the Revolving Commitments (with all increases in such commitments entered into as of the same day being deemed a single increase) and each such incremental increase shall be in an aggregate amount of not less than $20,000,000.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments (an “Incremental Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment” . Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or an “Incremental Facility”); provided that any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all Incremental its Revolving Commitments Commitment, and any decision by a Lender to increase its Revolving Commitment shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate over principal amount of the term of Revolving Commitments pursuant to this AgreementSection. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have any obligation declined to extend any Incremental Facility.
(b) increase its Revolving Commitment. The Borrowers Borrower may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Commitments among the Increasing Lenders and the Additional Lenders.
(c) Subject to subsections (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Commitments, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred to in clause (d)(i) above mayIf the Borrower incurs Incremental Commitments under this Section, without the consent of any other LendersBorrower shall, effect after such amendments to this Agreement time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the other Loan Documents as may be necessaryRevolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent and is expressly permitted to amend the Borrowers, Loan Documents to the extent necessary to give effect the provision of to any increase pursuant to this Section 2.22and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and for the avoidance of doubt, Base Rate Loans between Loans incurred pursuant to this Section 2.22 shall supersede and Loans outstanding immediately prior to any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
Appears in 1 contract
Samples: Revolving Credit Agreement (NexPoint Residential Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an aggregate amount not to exceed $300,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.19, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.19 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.19 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), who shall promptly notify the Lenders, propose to increase the Aggregate Revolving Commitments Commitment Amount up to an amount not to exceed $300,000,000 (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental any such increase, the "ADDITIONAL COMMITMENT AMOUNT"). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitments shall not exceed $50,000,000 in Commitment by a principal amount equal to its Pro Rata Share of the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (an "ADDITIONAL Lender"), become a party to extend such Incremental Facilitythis Agreement; provided howeverPROVIDED, HOWEVER, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 SECTION 2.4 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder of an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule ANNEX I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this SECTION 2.4 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in ARTICLE III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in such proportion and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion its respective Revolving Commitment bears to the aggregate Revolving Commitments after giving effect to such increase.
Appears in 1 contract
Samples: Revolving Credit Agreement (Swift Transportation Co Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, The Borrower may from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten five days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new term loans (each, an “Incremental Revolving Commitment” or an “Incremental FacilityTerm Loan”); provided that provided, that:
(a) the aggregate amount of all Incremental increases in the Aggregate Revolving Commitments plus the aggregate initial principal amount of all Incremental Term Loans after the Sixth Amendment Effective Date shall not exceed $50,000,000 150,000,000;
(b) any increase in the aggregate over Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be in a minimum principal amount of $15,000,000 and in integral multiples of $1,000,000 in excess thereof;
(c) no Default or Event of Default shall exist and be continuing at the term time of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) the conditions set forth in Section 3.2 shall be satisfied as of the date of any increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan;
(e) the Borrower shall have provided to the Administrative Agent a Pro Forma Compliance Certificate, in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance satisfactory to the Administrative Agent;
(g) with respect to any Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Latest Maturity Date or (y) the maturity date for any then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then-existing Incremental Term Loan;
(h) any increase in the Aggregate Revolving Commitments under this Section 2.23 shall have terms identical to those for the Revolving Loans under this Agreement. No , except for (i) upfront fees payable to the Lenders providing commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of such increase in the Aggregate Revolving Commitments;
(i) no Lender shall have any obligation to extend increase its Revolving Commitment or provide any Incremental Facility.Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender;
(bj) The Borrowers the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the Aggregate Revolving Commitments or an Incremental Term Loan Commitment, so long as (which may be, but need not be, one or more of the existing Lendersi) to extend such Incremental Facility Person (each, an “Additional Lender”)) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, which at (ii) any such Person proposed by the time agrees Borrower to extend such Incremental Facility; provided however, that any new bank or financial institution become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Issuing Bank and the Swingline Lender;
(k) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be pursuant to a commitment agreement, joinder agreement or other document in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld and upon the effectiveness of such commitment agreement, joinder agreement or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid document pursuant to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related feesthereof, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effectiveCommitments, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agentas applicable, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such commitment agreement, joinder agreement or other document and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.; and
(fl) Each supplement or joinder agreement referred with respect to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, increase in the reasonable opinion Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent and to prepay Revolving Loans of the Borrowersexisting Lenders, in an amount necessary such that after giving effect thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans (such payments to effect the provision of this existing Lenders shall be subject to Section 2.222.19), and for (ii) effective upon such increase, the avoidance amount of doubtthe participations held by each Lender in each Letter of Credit and each Swingline Loan then outstanding shall be adjusted automatically such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold participations in each such Letter of Sections 2.20 Credit or 11.2 such Swingline Loan in proportion to the contrarytheir respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time, on or after the Effective Date, so long as no Default or Event of Default has occurred and is continuing, from time or would occur as a result of a commitment increase pursuant to time after this Section 2.16, on the Restatement applicable Commitment Increase Effective Date, the Borrowers Pride may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose elect to increase the Aggregate Revolving Commitments in minimum increments of $10,000,000 up to a maximum aggregate amount (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that after giving effect thereto) of $750,000,000. In no event shall the aggregate amount Commitments of all Incremental Revolving Commitments shall not Lenders exceed $50,000,000 750,000,000 at any time. At the time of sending such notice with respect to any increase in the aggregate over Commitments, Pride (in consultation with the term of this Agreement. No Lender Administrative Agent) shall have any obligation to extend any Incremental Facilityspecify the proposed Commitment Increase Effective Date for such increase in the Commitments.
(b) The Borrowers Pride may designate a bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agree to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and, in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that (i) any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative AgentAgent and the Issuing Banks, which acceptance will not be unreasonably withheld or delayeddelayed and (ii) the Commitment of each Additional Lender must be at least $5,000,000. No Lender shall have any obligation whatsoever to agree to increase its Commitment.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.16 shall become effective (the “Commitment Increase Effective Date”) upon the (i) receipt by the Administrative Agent of:
of (ix) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrowers and Borrowers, by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of by each Additional other Lender to become a party to this Agreement and whose Commitment is to be bound by all the terms and provisions hereof,
increased, (iiy) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
increase in the Commitments and (iiiz) a certificate opinions of a Responsible Officer of counsel for the Borrowers with respect to the effect that increase in the Commitments as the Administrative Agent may reasonably request and (Aii) satisfaction of the conditions set forth in Section 4.2(a) and (b) 3.04. Promptly after any Commitment Increase Effective Date, the Administrative Agent will be satisfied before and after giving effect provide the Lenders a copy of Schedule II to the incurrence applicable Joinder Agreement listing the Commitments and Ratable Percentages of the Incremental Facility and (B) each Lender after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Increase Effective Date.
(ed) Upon the acceptance of any such agreement Joinder Agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement Joinder Agreement and (ii) the Commitments of each Lender whose Commitment is being increased set forth on Schedule I hereto shall automatically be deemed amended to be updated to reflect the Commitments increased amount of all Lenders such Lender’s Commitment after giving effect to the addition of such CommitmentsJoinder Agreement.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.16 that is not pro rata among all Lenders, effect such amendments to this Agreement and (x) the other Loan Documents as may be necessaryBorrowers, in the reasonable opinion of the Administrative Agent and the BorrowersLenders shall as of the effective date of such increase make adjustments to the outstanding principal amount of Advances (but not any interest accrued thereon or any accrued fees prior to such date), including, subject to the conditions specified in Section 3.02, the borrowing of additional Advances hereunder and the repayment of Advances plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Advances by the Lenders in proportion to their respective Commitments after giving effect to such increase, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.06 and Section 2.10, and each Lender shall be deemed to have made an assignment of its outstanding Advances and Commitments, and assumed outstanding Advances and Commitments of other Lenders as of the effective date of such increase as may be necessary to effect the provision of this Section 2.22foregoing, and for (y) effective upon such increase, the avoidance amount of doubtthe unfunded participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold unfunded participations in each such Letter of Sections 2.20 or 11.2 Credit in the proportion its respective Commitment bears to the contraryaggregate Commitments after giving effect to such increase.
Appears in 1 contract
Samples: Revolving Credit Agreement (Pride International Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed $45,000,000 (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental any such increase, the "Additional Commitment Amount"). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitments shall not exceed $50,000,000 in Commitment by a principal amount equal to its Pro Rata Share of the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.25, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (an "Additional Lender"), become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the previously unsubscribed amount of the Additional Commitment Amount pursuant to subsection (a).
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.25 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule Annex I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred to in clause (d)(i) above may, without Upon the consent effectiveness of any other increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.25 that is not pro rata among all Lenders, effect (x) the Revolving Loans shall be reallocated among the Lenders (including all Additional Lenders), such amendments reallocation to this Agreement be accomplished by Additional Lenders and the other Loan Documents as may Lenders increasing their Revolving Commitments funding additional Revolving Loans, the proceeds of which shall be necessary, in the reasonable opinion of applied by the Administrative Agent and to repay the BorrowersRevolving Loans of the remaining Lenders such that after giving effect thereto, the Revolving Loans are held by the Lenders in proportion to their respective Revolving Commitments after giving effect the provision of this Section 2.22to such increase, and for (ii) the avoidance amount of doubtthe participations held by each Lender (including each Additional Lender) in each Letter of Credit then outstanding shall be adjusted automatically such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold participations in each such Letter of Sections 2.20 or 11.2 Credit in proportion to their respective Revolving Commitments. The Borrower acknowledges and agrees that after giving effect to the contraryforegoing reallocations, the Borrower shall owe the Revolving Credit Exposure pro rata to the Lenders based on their Revolving Commitments in effect after such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to request incremental term loans hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $225,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2021, there shall have been no change which has occurred had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the existing Term Loans and is continuingIncremental Term Loans and (2) have no amortization or otherwise be permitted to be prepaid prior to the latest existing Maturity Date of any Term Loans or any tranche of Incremental Term Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, from time calculated as if all such Incremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Term Loans and any existing Incremental Term Loans, (ii) shall be equally and ratably secured with the Term Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event, not more favorably than) the Term Loans and any existing Incremental Term Loans; and
(vii) all other terms and conditions with respect to time after any such Incremental Commitments shall be reasonably satisfactory to the Restatement Effective Date, the Borrowers may, upon Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to increase those Lenders (the Aggregate Revolving Commitments (an “Increasing Lenders”) that agree to provide Incremental Revolving Commitment” or an “Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to provide Incremental Facility”); provided that Term Loans. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the aggregate Borrower and the Administrative Agent the amount of all such proposed Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementCommitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation obligation, express or implied, to extend offer to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Facility.
(b) Term Loans shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for the Incremental Term Loans, as applicable, pursuant to this Section. No Lender which declines to provide Incremental Term Loans may be replaced with respect to its existing Term Loans and/or its Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide Incremental Term Loans, as applicable. The Borrowers Borrower may designate a bank accept some or other financial institution (which may be, but need not be, one or more all of the existing Lendersoffered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) to extend such Incremental Facility as additional Lenders hereunder in accordance with this Section (each, an the “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; provided howeverCommitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of all Incremental Term Loans of the Increasing Lenders plus the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, that any new bank or financial institution must increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the any new Incremental Revolving Commitments Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in paragraph (ia) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement Term Loans, as applicable, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement If any Incremental Term Loans are to have terms that are different from the existing Term Loans or joinder the Term Loan Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Borrower, without the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Term Loans and the other Loan Documents as may Administrative Agent, the execution and delivery of which agreement shall be necessarya condition to the effectiveness of the Non-Conforming Credit Extensions. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent and is expressly permitted to amend the Borrowers, Loan Documents to the extent necessary to give effect the provision of to any increase pursuant to this Section 2.22, and for the avoidance mechanical changes necessary or advisable in connection therewith (including amendments to ensure pro rata allocations of doubt, SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarySection).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers either Borrower may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate SBAC Revolving Commitments or the Aggregate SBF Revolving Commitments (each, an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers applicable Borrower may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing SBAC Revolving Commitments or SBF Revolving Commitments, as applicable (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding SBAC Revolving Loans and the Pro Rata Share of L/C Obligations or SBF Revolving Loans will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving applicable Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving applicable Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repaymentreallocation).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So At any time before the Extended Commitment Termination Date, so long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers Borrower Representative may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose to increase the Aggregate Extended Revolving Commitments (including without limitation by converting any Non-Extended US Revolving Commitment to an “Incremental Extended US Revolving Commitment” or ) by an “Incremental Facility”); provided that amount not to exceed the lesser of (x) $130,000,000 and (y) the aggregate amount of all Incremental reductions in the Non-Extended US Revolving Commitments shall not exceed made since the Restatement Date (the amount of any such increase, the “Additional Commitment Amount”), of which up to $50,000,000 in may be applied to increase the aggregate over the term of this AgreementCanadian Revolving Commitments. No Lender (or any successor thereto) shall have any obligation to extend increase its Extended Revolving Commitments or its other obligations under this Agreement and the other Loan Documents, or to convert its Non-Extended US Revolving Commitment to an Extended US Revolving Commitment, and any Incremental Facilitydecision by a Lender to increase its Extended Revolving Commitments or convert its Non-Extended US Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers Borrower Representative may designate a bank or the banks and other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (eachprovide the incremental Extended Revolving Commitments; provided, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution that is not already a Lender (each, an “Additional Lender”) must be acceptable to the Administrative Agent and, with respect to an increase in the Canadian Revolving Commitments, the Canadian Funding Agent, which acceptance acceptances will not be unreasonably withheld or delayed. The sum of the increases in the Extended Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Extended Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Extended Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 4.17 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrowers, by each Additional Lender, by each other Lender whose Extended Revolving Commitment is to be increased and by each Additional Lender converting a Non-Extended US Revolving Commitment to an Extended US Revolving Commitment, setting forth the Incremental new Extended Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate increase in the Extended Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Loan Parties with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related feesAdministrative Agent may reasonably request. The Additional Commitment Amount, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made shall, on the date that of the Incremental Facility becomes effectiveeffectiveness of the applicable increase, be added to the then existing Extended Revolving Commitments, and deeming any Incremental all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Extended Revolving Commitment to be fully drawn for purposes of calculating such compliance)Commitments.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Extended Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Extended Revolving Commitments added through such agreement supplement or joinder, and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Extended Revolving Commitments (and upon request of any party, the Administrative Agent will promptly circulate the updated Schedule II to all parties hereto).
(e) Upon any increase in the aggregate amount of the Extended US Revolving Commitments pursuant to this Section 4.17 that is not pro rata among all Extended US Lenders, (x) within five (5) Business Days, in the case of any Extended Base Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Extended Eurodollar Loans then outstanding, the US Borrowers shall prepay such Extended Loans in their entirety and, to the extent the US Borrowers elect to do so and subject to the conditions specified in Article V, the US Borrowers shall reborrow Extended Loans from the Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to such increase, until such time as all outstanding Extended US Loans are held by the Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Extended US Lender in each US Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Extended US Lenders shall hold participations in each such US Letter of Credit in proportion to their respective Extended US Revolving Commitments.
(f) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Canadian Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 4.17 that is not pro rata among all Canadian Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five (5) Business Days, in the reasonable opinion case of any Canadian Prime Rate Loans then outstanding, the Canadian Borrowers shall prepay such Loans in their entirety and, to the extent the Canadian Borrowers elect to do so and subject to the conditions specified in Article V, the Canadian Borrowers shall reborrow Loans from the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase, until such time as all outstanding Canadian Prime Rate Loans are held by the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the Administrative Agent participations held by each Canadian Lender in each Canadian Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Canadian Lenders shall hold participations in each such Canadian Letter of Credit in proportion to their respective Canadian Revolving Commitments.
(g) On the DnB NOR Commitment Termination Date, without any further action by any party hereto and without the Borrowerspayment of any fees or other incremental yield to the DnB NOR Lenders, (i) the DNB NOR Commitments shall automatically be converted to additional Extended US Revolving Commitments in an aggregate amount equal to the outstanding DnB NOR Loans outstanding on the DnB NOR Commitment Termination Date, (ii) the Aggregate Extended Revolving Commitment Amount shall automatically be increased by the amount of the Extended Revolving Commitments added upon such conversion and (iii) Schedule II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the provision conversion of this Section 2.22the DnB NOR Commitments to Extended US Revolving Commitments. On the DnB NOR Commitment Termination Date, (x) the US Borrowers shall prepay such DnB NOR Loans in their entirety with an Extended US Revolving Borrowing in an amount equal to the then outstanding DnB NOR Loans, such Extended US Revolving Borrowing to be funded by the Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to the conversion of the DnB NOR Commitments to Extended US Revolving Commitments, and for (y) the avoidance amount of doubtthe participations held by each Extended US Lender in each US Letter of Credit then outstanding shall be adjusted automatically such that, this Section 2.22 after giving effect to such adjustments, the Extended US Lenders shall supersede any provisions hold participations in each such US Letter of Sections 2.20 or 11.2 Credit in proportion to their respective Extended US Revolving Commitments; provided, however, that to the contraryextent that the conditions set forth in Section 5.2 are not satisfied on the DnB NOR Commitment Termination Date, the DnB NOR Loans shall be deemed to be Extended Revolving Loans outstanding solely under the incremental Extended US Revolving Commitments arising pursuant to this clause (g), and no such adjustment to the participations in the US Letters of Credit shall be made, unless and until such conditions are satisfied. The foregoing increase in the Extended US Revolving Commitments from the conversion of the DnB NOR Commitments shall not limit in any manner the ability of the Borrowers to increase the Extended US Revolving Commitments pursuant to clause (a) above.
Appears in 1 contract
Samples: Revolving Credit Agreement (Macquarie Infrastructure CO LLC)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and subject solely to the conditions set forth in this Section 2.23, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments (each such increase, an “Incremental Commitment”, and the principal amount of each Incremental Commitment is referred to herein as the “Incremental Commitment Amount”), so long as the following conditions are satisfied:
(i) the aggregate principal amount of all Incremental Commitments established pursuant to this Section (the “Incremental Cap”) shall not exceed an amount equal to the sum of (A) $132,000,000 and (B) the maximum amount that would result in a Secured Net Leverage Ratio, on a pro forma basis (treating the amount of any Incremental Commitments extended on such date as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments) (and on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), of not more than 2.00:1.00 as of the most recently ended Fiscal Quarter for which financial statements shall have been delivered (or, if the Borrower at its sole discretion shall have provided the Administrative Agent with monthly financial statements for Parent and its Restricted Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent, as of the most recently ended twelve month period); provided that, the aggregate principal amount of Incremental Equivalent Debt established after the Closing Date in reliance on clause (i)(A) above shall result in a dollar for dollar reduction in the amount of Incremental Commitments permitted to be established pursuant to clause (i)(A) of this Section. Unless the Borrower elects otherwise, each Incremental Commitment will be deemed incurred first under clause (i)(B) above to the extent permitted, with the balance incurred under clause (i)(A) above.
(ii) before and after giving effect to any proposed Incremental Commitment (determined, in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date (other than the determination of whether any Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) exists or would result therefrom, which shall be determined as of the date such Limited Condition Acquisition is consummated)), no Default or Event of Default has will have occurred and be continuing;
(iii) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) at the time of and on the date of the incurrence of such Incremental Commitment (except to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) as of such earlier date); provided that if such Incremental Commitment is continuing, from time to time after the Restatement Effective Datebe used to fund a Limited Condition Acquisition, the Borrowers maycondition set forth in this clause (iii) may be satisfied with (A) the accuracy of customary “specified representations” and “acquisition agreement representations” and (B) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Commitment;
(iv) after giving effect to any proposed Incremental Commitment (determined, upon in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date), on a pro forma basis (treating the Incremental Commitments as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments), Parent and its Restricted Subsidiaries are in compliance with the Financial Covenants (on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), measuring clause (a) of the Secured Net Leverage Ratio as of the date such Incremental Commitment is to be established (or, in the case of a Limited Condition Acquisition, as of the LCA Test Date) and otherwise re-computing such covenant as of the last day of the most recently ended Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, if the Borrower at its sole discretion shall have provided the Administrative Agent with monthly financial statements for the Borrower and its Restricted Subsidiaries, re-computing such covenants as of the last day of the most recently ended twelve month period) as if such Incremental Commitment was established on the first day of the relevant period for testing compliance;
(v) [reserved];
(vi) [reserved];
(vii) any Incremental Commitments provided pursuant to this Section shall be on terms (including pricing and maturity but excluding upfront fees) and pursuant to documentation applicable to the Revolving Commitments outstanding immediately prior to such incurrence; and
(viii) (A) obligations in respect of any Incremental Commitments (1) shall constitute Obligations, (2) shall have the same guarantees as the Obligations and (3) shall rank pari passu in right of payment and security with the other Loans and (B) and all collateral securing any such Incremental Commitments shall also secure all other Obligations.
(b) The Borrower shall provide at least ten days10 Business Days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to increase those Lenders (the Aggregate Revolving Commitments (an “Increasing Lenders”) that agree to provide any Incremental Revolving Commitment” or an “Incremental Facility”); provided that , which fees may be variable based upon the aggregate amount any such Lender is willing to provide. Each Increasing Lender shall as soon as practicable, and in any case within 5 Business Days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of all such proposed Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementCommitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation obligation, express or implied, to extend provide any portion of any requested Incremental Commitment, and any decision by a Lender to provide any portion of any such Incremental Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required to establish an Incremental Commitment pursuant to this Section. No Lender that declines to provide any requested Incremental Commitment may be replaced with respect to any of its existing Commitments or Loans as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide any Incremental Facility.
(b) Commitment within 5 Business Days after receipt of such notice, such Lender shall be deemed to have declined to do so. The Borrowers Borrower may accept some or all of the amounts offered by existing Lenders or may designate a bank or other financial institution new lenders (which may besubject to the restrictions set forth in Section 10.4, but need not be, one or more of as if such Loans were being acquired via assignment) as additional Lenders hereunder in accordance with this Section (the existing Lenders) to extend such Incremental Facility (each, an “Additional LenderLenders”), which at the time agrees to extend Additional Lenders may assume all or a portion of such Incremental Facility; Commitment and such Additional Lenders shall be acceptable to the Administrative Agent (such approval not to be unreasonably withheld). The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of any Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the portion of any proposed Incremental Commitment that is to be provided howeverby Increasing Lenders plus the portion of such Incremental Commitment that is to be provided by Additional Lenders shall not, that in the aggregate, exceed the proposed Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any new bank Incremental Commitment requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an executed copy of an instrument of joinder or financial institution must be amendment, in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by Borrower, each Additional Lender and each Increasing Lender, setting forth the such Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) evidence of appropriate corporate authorization on to the part of extent reasonably required by the Borrowers Administrative Agent after consultation with the Borrower, legal opinions and authorizing resolutions, in each case, with respect to such Incremental Commitment and consistent with those delivered on the Incremental FacilityClosing Date, andother than changes to such legal opinions resulting from a change in law or change in fact;
(iii) a certificate of Parent signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied; and
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitment, issued by the amount Borrower in accordance with Section 2.10. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted, as applicable, to give effect to such Incremental Revolving Commitments added through such agreement Commitment, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred to in clause (d)(i) above mayIf the Borrower incurs Incremental Commitments under this Section, without the consent of any other LendersBorrower shall, effect after such amendments to this Agreement time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the other Loan Documents as may Revolving Commitments outstanding immediately prior to such incurrence and no amounts shall be necessarypayable by the Borrower pursuant to Section 2.19 in connection therewith. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 20 days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Term Loan Lender or Revolving Loan Lender, as applicable), propose to increase either the aggregate Term Loan Commitments or the Aggregate Revolving Commitments (by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 in the aggregate over (and in minimum increments of $10,000,000) (the amount of any such increase, the “Additional Commitment Amount”), but in any event, no more than four (4) such elections shall be made during the term of this Agreement. Each Term Loan Lender or Revolving Loan Lender, as applicable, shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Term Loan Commitment or Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Term Loan Commitment or Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Term Loan Commitment or Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Term Loan Commitment or Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Term Loan Commitment or Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facilitybecome a party to this Agreement, if not already a Term Loan Lender or Revolving Loan Lender; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed. The sum of the increases in either of the Term Loan Commitments or Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Term Loan Commitments or Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Term Loan Commitments or Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.24 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Term Loan Commitment or Revolving Commitment is to be increased, setting forth the Incremental new Term Loan Commitments or Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and, to the extent requested by such Additional Lender or such other Lender whose Term Loan Commitment or Revolving Commitment is to be increased, Revolving Notes or Term Notes evidencing such increase in the Term Loan Commitment or Revolving Commitment, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower and the Guarantors with respect to the Incremental Facility, and
(iii) a certificate increase in the Term Loan Commitments or Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower and the Guarantors with respect to the effect that (A) increase in the conditions set forth Term Loan Commitments or Revolving Commitments as the Administrative Agent may reasonably request. In connection with the foregoing, and notwithstanding anything in Section 4.2(a) and (b) will be satisfied before and after giving effect 10.2 to the incurrence of contrary, the Incremental Facility and (B) after giving effect to such increase Administrative Agent, the Borrower, the Guarantors and the payment Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of any related feesAdditional Commitment Amount into the terms of this Agreement, and to provide the Borrowers would be in compliance on a pro forma basis Additional Lenders with the covenants set forth benefits of this Agreement that are available to the other Lenders in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating same Class as such compliance)Additional Lenders.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Term Loans or Aggregate Revolving Commitment Amount Amount, as applicable, shall automatically be increased by the amount of the Incremental Term Loan Commitments or Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Term Loan Commitments or Revolving Commitments.
(e) Upon any increase in the aggregate amount of the Term Loan Commitments or Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Loans from the Term Loan Lenders or Revolving Loan Lenders in proportion to their respective Term Loan Commitments or Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Term Loan Lenders or existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(f) Each supplement or joinder agreement referred Principal payments with respect to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments Term Loans made pursuant to this Agreement Section 2.24 shall be due and payable on the other Loan Documents same dates on which payments are required to be made pursuant to Section 2.10(c), and in such amounts as may shall be necessary, in required to ensure that the reasonable opinion weighted average life to maturity shall be equal to the weighted average life to maturity of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryoriginal Term Loans.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, The Borrower may from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten five days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new term loans (each, an “Incremental Revolving Commitment” or an “Incremental FacilityTerm Loan”); provided that provided, that:
(a) the aggregate amount of all Incremental increases in the Aggregate Revolving Commitments plus the aggregate initial principal amount of all Incremental Term Loans shall not exceed $50,000,000 in the aggregate over 150,000,000 during the term of this Agreement. No ;
(b) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be in a minimum principal amount of $15,000,000 and in integral multiples of $1,000,000 in excess thereof;
(c) no Default or Event of Default shall exist and be continuing at the time of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) the conditions set forth in Section 3.2 shall be satisfied as of the date of any increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan;
(e) the Borrower shall have provided to the Administrative Agent a Pro Forma Compliance Certificate, in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance satisfactory to the Administrative Agent;
(g) with respect to any Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Revolving Commitment Termination Date or (y) the maturity date for any then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then-existing Incremental Term Loan;
(h) any increase in the Aggregate Revolving Commitments under this Section 2.23 shall have terms identical to those for the Revolving Loans under this Agreement, except for (i) upfront fees payable to the Lenders providing commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of such increase in the Aggregate Revolving Commitments;
(i) no Lender shall have any obligation to extend increase its Revolving Commitment or provide any Incremental Facility.Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender;
(bj) The Borrowers the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the Aggregate Revolving Commitments or an Incremental Term Loan Commitment, so long as (which may be, but need not be, one or more of the existing Lendersi) to extend such Incremental Facility Person (each, an “Additional Lender”)) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, which at (ii) any such Person proposed by the time agrees Borrower to extend such Incremental Facility; provided however, that any new bank or financial institution become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Issuing Bank and the Swingline Lender;
(k) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be pursuant to a commitment agreement, joinder agreement or other document in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld and upon the effectiveness of such commitment agreement, joinder agreement or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid document pursuant to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related feesthereof, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effectiveCommitments, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agentas applicable, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such commitment agreement, joinder agreement or other document and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.; and
(fl) Each supplement or joinder agreement referred with respect to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, increase in the reasonable opinion Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent and to prepay Revolving Loans of the Borrowersexisting Lenders, in an amount necessary such that after giving effect thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans (such payments to effect the provision of this existing Lenders shall be subject to Section 2.222.19), and for (ii) effective upon such increase, the avoidance amount of doubtthe participations held by each Lender in each Letter of Credit and each Swingline Loan then outstanding shall be adjusted automatically such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold participations in each such Letter of Sections 2.20 Credit or 11.2 such Swingline Loan in proportion to the contrarytheir respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) Increase of the Revolving Loan Commitments.
(i) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent Borrower, on behalf of Borrowers, may agree request the right to effectuate increases in its sole discretion) to the Administrative Agent Revolving Loan Commitments (who shall promptly provide any such increase, a copy of such notice to each Lender“Commitment Increase”), propose to increase the Aggregate Revolving Commitments (in an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed up to $50,000,000 in for all such Commitment Increases (the aggregate over “Commitment Increase Cap”), during the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate Agreement by delivering a bank or other financial institution (which may be, but need not be, one or more Notice of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable Requested Commitment Increase to the Administrative Agent, which acceptance will not provided that, in each case: (A) each Commitment Increase shall be unreasonably withheld or delayed.
in minimum increments of $10,000,000; (cB) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving proposed Commitment Increase shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid been consented to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated in writing by the Administrative Agent on the applicable increase effective date among the Agent, each Lender (if any) who is increasing its Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (Loan Commitment and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement other bank or joinder in form and substance reasonably satisfactory financial institution acceptable to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender that has agreed to become a party to this Agreement and to be bound by Lender in respect of all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part or a portion of the Borrowers with respect Commitment Increase (a “New Lender”); (C) the pricing and other terms applicable to the Incremental FacilityCommitment Increase shall be the same as those applicable to the existing Revolving Loan Commitments; (D) the proposed Commitment Increase, and
together with any prior Commitment Increase, shall not exceed the Commitment Increase Cap; (iiiE) Availability, measured on a pro forma basis after giving effect to the Commitment Increase, for the five consecutive Business Days prior to the Commitment Increase is at least $20,000,000; and (F) the Fixed Charge Coverage Ratio as of the end of the fiscal month most recently ended for which the Administrative Agent has received financial statements at the time of the Commitment Increase, for the period of the immediately preceding twelve (12) months, of not less than 1.00:1.00. Each Notice of Requested Commitment Increase shall specify: (1) the amount of the proposed Commitment Increase and (2) the requested date of the proposed Commitment Increase (which shall be at least thirty (30) days from the date of delivery of the Notice of Requested Commitment Increase). Each Notice of Requested Commitment Increase shall be binding on all Borrowers. Upon the effective date of any Commitment Increase, the Administrative Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer the chief financial officer of the Borrowers to the effect Administrative Agent certifying that (A) no Default or Event of Default then exists or would be caused thereby and that the conditions set forth in Section 4.2(aclause (D), (E) and (bF) will are satisfied. No Commitment Increase shall be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by effective until the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Agent shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such have received amendments to this Agreement and the other Loan Documents as may Documents, commitments of Lenders or New Lenders in an aggregate amount equal to such Commitment Increase, agreements for each Lender or New Lender committing to such Commitment Increase (each, a “Lender Agreement”), any upfront fees to be necessarypaid to the Lenders committing to such Commitment Increase, and such opinion letters, Revolving Loan Notes and other agreements, documents and instruments requested by and reasonably satisfactory to the Administrative Agent in its reasonable discretion evidencing and setting forth the conditions of such Commitment Increase.
(ii) If the Administrative Agent approves a proposed Commitment Increase, the Administrative Agent shall deliver a copy of the Notice of Requested Commitment Increase relating thereto to each Lender. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement or the other Loan Documents, and any decision by a Lender to increase its Revolving Loan Commitment shall be made in its sole discretion independently from any other Lender. If the Administrative Agent receives commitments from the Lenders or the New Lenders in excess of the amount of the proposed Commitment Increase, the Administrative Agent shall have the right, in its sole discretion, to reduce and reallocate (within the reasonable opinion minimum and maximum amounts specified by each such Lender or New Lender in its notice to the Administrative Agent) the shares of such Commitment Increase of the Lenders or New Lenders willing to fund the proposed Commitment Increase so that the total committed shares of the proposed Commitment Increase equals the proposed Commitment Increase. The Administrative Agent shall notify each Lender or New Lender, as the case may be, whether its proposed share of the proposed Commitment Increase has been accepted and, if so, the amount of its share of such Commitment Increase, and such Lender shall thereafter execute and deliver a Lender Agreement with respect to its respective share of such Commitment Increase.
(iii) Notwithstanding anything to the contrary contained herein, each Commitment Increase meeting the conditions set forth in Section 2.17(a)(i) shall not require the consent of any Lender other than those Lenders, if any, which have agreed to increase their Revolving Loan Commitments in connection with such Commitment Increase and shall not constitute an amendment, modification or waiver that is subject to Section 11.12 and shall be effective as of the later of (a) the date specified in the applicable Notice of Requested Commitment Increase and (b) the date upon which the foregoing conditions shall have been satisfied or waived by the Administrative Agent and the BorrowersLenders which have agreed to increase their Revolving Loan Commitments, to effect or by the provision Required Lenders in accordance with Section 11.12 in the case of this Section 2.22a waiver of an Event of Default, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryas applicable.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section 4.15, the Borrowers and one (1) or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Floor Plan Commitments hereunder (each such increase, an “Incremental Commitment”), or establish one or more increases to the Initial Term Loan or separate incremental term loan tranches (each such term loan increase or separate incremental term loan tranche, an “Incremental Term Loan”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments and all Incremental Term Loans made pursuant to this Section 4.15 shall not exceed $0;
(ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed Incremental Commitment or Incremental Term Loan;
(iii) at the time of and immediately after giving effect to any such proposed Incremental Commitment or Incremental Term Loan, no Default or Event of Default has occurred shall exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such date (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects);
(iv) any increase in Aggregate Floor Plan Commitments shall be part of, and shall have terms identical to those of, the other Floor Plan Commitments under this Agreement, except for fees payable to the Lenders providing commitments for such increase in the Aggregate Floor Plan Commitments;
(v) amortization, pricing and use of proceeds applicable to any Incremental Term Loan established as a separate term loan tranche (rather than as an additional advance under the Initial Term Loan) shall be as set forth in the definitive documentation establishing such Incremental Term Loan; provided that (A) any such Incremental Term Loan shall have a final maturity date that is continuingno earlier than the Maturity Date with respect to any Term Loan (including any other then-existing Incremental Term Loan), (B) the weighted average life to maturity (determined by the Administrative Agent in accordance with its customary financial practice) of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any Term Loan (including any other then-existing Incremental Term Loan), (C) the terms of such Incremental Term Loan (other than pricing, maturity, amortization, premiums and other economic terms, which shall be agreed among the Borrowers and the Lenders providing such Incremental Term Loan) shall be (1) consistent with the terms of the Initial Term Loan or (2) not materially, subject to the preceding clauses (A) and (B) more restrictive to the Loan Parties when taken as a whole than the terms of the Initial Term Loan and reasonably satisfactory to the Administrative Agent, and (D) any Incremental Term Loan constituting an additional advance under or increase to the Initial Term Loan shall be part of, and shall be on the same terms (including amortization, pricing and maturity) as, the Initial Term Loan (except for fees payable to the Lenders providing such additional advance under or increase to the Initial Term Loan);
(vi) the Loan Parties and their Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VIII as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered pursuant to Section 7.1(a) or (b), calculated as if all such Incremental Term Loans had been made and all such Incremental Commitments had been established and fully funded (and giving effect to the use of proceeds thereof) as of the first day of the relevant period for testing compliance;
(vii) any collateral securing any such Incremental Commitments or Incremental Term Loans shall also secure all other Obligations on a pari passu basis;
(viii) in addition to the other applicable conditions to effectiveness set forth herein, any Incremental Commitments or Incremental Term Loan Commitments shall be effective only upon receipt by the Administrative Agent of (A) additional Floor Plan Commitments in a corresponding amount of such requested Incremental Commitments, or Incremental Term Loan Commitments in a corresponding amount of such requested Incremental Term Loans, from time either existing Lenders and/or one or more other institutions that qualify as assignees under Section 12.5 (each such institution, an “Additional Lender”) and (B) documentation from each existing Lender or Additional Lender providing an Incremental Commitment or Incremental Term Loan Commitment evidencing its agreement to time after provide an Incremental Commitment and/or Incremental Term Loan Commitment and its acceptance of the Restatement Effective Date, obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent; and
(ix) all other terms and conditions with respect to any such Incremental Commitments and Incremental Term Loan Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrowers may, upon shall provide at least ten twenty (20) days’ written notice (or such shorter period of time as is consented to by the Administrative Agent may agree to in its sole discretionAgent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment or Incremental Term Loan Commitment. The Borrowers may also, propose but are not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate Revolving principal amount of their Floor Plan Commitments and/or provide any Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Floor Plan Commitment and/or provide an Incremental Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within ten (an “10) Business Days following receipt of such notice, specify in a written notice to the Borrowers and the Administrative Agent the amount of such proposed Incremental Revolving Commitment” Commitment or an “Incremental Facility”); provided Term Loan Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of all its Floor Plan Commitment, or to provide any Incremental Revolving Commitments Term Loan Commitment, and any decision by a Lender to do so shall not exceed $50,000,000 be made in its sole discretion independently from any other Lender. Neither the aggregate over the term of this Agreement. No Arranger nor any Lender shall have any obligation responsibility for arranging any such Incremental Commitments or Incremental Term Loan Commitments without their prior written consent and subject to extend such conditions, including fee arrangements, as they may provide in connection therewith. Only the consent of each Increasing Lender (and, if applicable, each Additional Lender with respect to any Incremental FacilityCommitment or Incremental Term Loan Commitment) shall be required to implement any Incremental Commitment or Incremental Term Loan Commitment, as applicable, pursuant to this Section 4.15 (and, notwithstanding anything to the contrary in Section 12.3, this Agreement may be amended with only the consent of the Increasing Lenders, the Additional Lenders (if any) providing such Incremental Commitments or Incremental Term Loan Commitments, the Borrowers and the Administrative Agent to establish any Incremental Commitment or Incremental Term Loan Commitment in accordance with this Section 4.15 and make such changes as the Administrative Agent deems appropriate in connection therewith (including to (x) increase the amount of the required monthly principal payments for the Initial Term Loan in connection with an Incremental Term Loan that is an increase to the Initial Term Loan and (y) if and to the extent any such Incremental Commitment or Incremental Term Loan Commitment is being established to finance the acquisition of a Kia, Hyundai or Subaru dealership, or any other dealership for which the relevant manufacturer so requires, to make such amendments to this Agreement and the other Loan Documents as the Administrative Agent deems appropriate in order to treat the Obligations in respect of such Incremental Commitment or Incremental Term Loan Commitment in a manner similar to the treatment of the Capital Loan Portion of the Initial Term Loan in Section 1.6 hereof, or in such other manner as is necessary to obtain the approval of the relevant manufacturer in connection with such transactions)). No Lender which declines to increase the principal amount of its Floor Plan Commitment or to provide any Incremental Term Loan Commitment may be replaced with respect to its existing Floor Plan Commitment or Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrowers and the Administrative Agent in writing about whether it will increase its Floor Plan Commitment or provide any Incremental Term Loan Commitment within ten (10) Business Days after receipt of such notice, such Lender shall be deemed to have declined to increase its Floor Plan Commitment or provide any Incremental Term Loan Commitment, as applicable. The Borrowers may accept some or all of the offered amounts or designate Additional Lenders hereunder in accordance with this Section 4.15, which Additional Lenders may provide all or a portion of such Incremental Commitment or Incremental Term Loan Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Commitments and Incremental Term Loan Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increases in the Floor Plan Commitments and the Incremental Term Loan Commitments of the Increasing Lenders, plus the Floor Plan Commitments and Incremental Term Loan Commitments of the Additional Lenders, shall not in the aggregate exceed the limitations on the aggregate amount thereof set forth in Section 4.15(a)(i) in any case.
(c) Subject to clauses (a) and (b) The of this Section 4.15, any Incremental Commitment or Incremental Term Loan Commitment requested by the Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility (eachan originally executed copy of an instrument of joinder, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Loan Parties, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and Incremental Term Loan Commitments, as applicable, of such Lenders and the terms thereof and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) evidence all documents (including authorizing resolutions of appropriate each Loan Party, incumbency certificates, certified organizational documents and certificates of existence/good standing) as the Administrative Agent reasonably requires relating to corporate authorization on the part of the Borrowers matters with respect to each Loan Party and the necessary authority for such Incremental FacilityCommitment or Incremental Term Loan Commitment and the validity thereof, andand any other matters relevant thereto, together with such opinions of counsel to the Loan Parties with respect to such Incremental Commitment or Incremental Term Loan and the documentation therefor as the Administrative Agent reasonably requires, all in form and substance reasonably satisfactory to the Administrative Agent;
(iii) a certificate of the Borrowers signed by a Responsible Officer thereof, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the Borrowers to the effect that conditions in clause (Aa) the conditions set forth in of this Section 4.2(a) and has been satisfied (b) will be satisfied before and after giving effect to the incurrence including reasonably detailed calculations of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the financial covenants set forth in Section 8.4 Article VIII in accordance with subsection (a)(vi) of this Section);
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments or Incremental Term Loans, issued by the applicable Borrowers in accordance with the terms hereof;
(v) such amendments to the Collateral Documents as the Administrative Agent requires to ensure that the Obligations (after giving effect to any Borrowings to be made on the date Incremental Commitment or Incremental Term Loan Commitment) are secured thereby; and
(vi) any other certificates or documents that the Incremental Facility becomes effectiveAdministrative Agent shall reasonably request, in form and deeming any Incremental Revolving Commitment substance reasonably satisfactory to be fully drawn for purposes of calculating such compliance).
(e) the Administrative Agent. Upon the acceptance effectiveness of any such agreement by Incremental Commitment or the Administrative Agentextension of any such Incremental Term Loan, (i) the Aggregate Revolving Commitment Amount shall automatically Commitments and Pro Rata Shares of each Lender will be increased by the amount of adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred Subject to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other provisions above in this Section 4.15, each Incremental Term Loan Documents shall be repayable as may be necessary, provided in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede documentation establishing such Incremental Term Loan. Amounts repaid on any provisions of Sections 2.20 or 11.2 to the contraryIncremental Term Loan may not be reborrowed.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Potential Default or Event of Default has occurred and is continuing, Borrower may, from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten days’ written prior notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who which shall promptly provide a copy of such notice to notify each LenderLender following its receipt thereof), propose to increase the Aggregate Revolving total Commitments up to an amount in each instance not less than $50,000,000, but in no event by more than an amount that would cause the total Commitments to exceed $700,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its pro rata share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement or the other Credit Documents, any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender and any Lender which does not respond within such 15 day period shall be deemed to have advised the Administrative Agent and the Borrower that it elected not to increase its Commitment.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, If any one or more Lenders shall elect not to increase its Commitment pursuant to subsection (a) of this Section (each a “Non-Consenting Lender”), the Administrative Agent shall, promptly after the end of such 15-day period or promptly after the date the Administrative Agent shall have received all Lenders’ related election, whichever shall occur first, notify all other Lenders (the “Consenting Lenders”) of the existing amount of the Additional Commitment Amount that remains unsubscribed (the “Unsubscribed Amount”). Each such Consenting Lender shall have the right for a period of 10 days following receipt of such notice to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount up to the remaining Unsubscribed Amount. The sum of the increases in the Commitments of the Consenting Lenders pursuant to subsections (a) and (b) shall not in the aggregate exceed the Additional Commitment Amount; provided, however, that if accepted by the Borrower, and subject to the right of any Consenting Lender to promptly revoke its prior election to increase its Commitment in such event, such increases in the Commitments of the Consenting Lenders may exceed the Unsubscribed Amount (but shall in no event cause the total Commitments in effect to exceed $700,000,000). If the sum of the additional increases in the Commitments of the Consenting Lenders pursuant to this subsection (b) exceeds the Unsubscribed Amount, or any greater amount accepted by the Borrower as provided in the immediately preceding sentence, then the additional increases in Commitments pursuant to this subsection (b) shall be reduced pro-rata such that amount of the Consenting Lenders’ Commitments increased pursuant to this subsection (b) shall not exceed the Unsubscribed Amount or such greater amount, as applicable.
(c) If the Consenting Lenders shall not increase their Commitments pursuant to extend such Incremental Facility subsection (eacha) and (b) of this Section in an amount equal to the Additional Commitment Amount, then not later than 10 days prior to the effective date of the increase in the Commitments the Borrower may designate in writing to the Administrative Agent other banks or financial institutions which at the time agree to become parties to this Agreement (each an “Additional Lender”); provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent. The sum of the increases in the Commitments of the Consenting Lenders pursuant to subsections (a) and (b), which acceptance will not be unreasonably withheld or delayed.
(c) In plus the case Commitments of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitmentpursuant to this subsection (c); and
(ii) , shall not in the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including aggregate exceed the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment)Commitment Amount.
(d) An Incremental Revolving Commitment increase in the aggregate amount of the Commitments pursuant to this Section 2.22 2.6 shall become effective upon the receipt by the Administrative Agent of:
of (i) a supplement or joinder an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each Consenting Lender, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) Commitments as the Administrative Agent may reasonably request, and (bii) will be satisfied before Notes executed and after giving effect to delivered by the incurrence of the Incremental Facility Borrower for each Consenting Lender and (B) after giving effect to each Additional Lender, evidencing such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Lenders’ Commitments.
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount total Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I 2 shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsadditional Commitments and Additional Lenders, as applicable.
(f) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.6 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Borrowings then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Borrowings then outstanding, the Borrower shall prepay such Borrowings in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article V, the Borrower shall reborrow Borrowings from the Lenders (including any Additional Lenders) in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Borrowings are held by the Lenders (including any Additional Lenders) in such proportion and (y) effective upon such increase, the amount of the participations held by the Lenders (including any Additional Lenders) in the LC Outstandings shall be adjusted such that, after giving effect to such adjustments, each Lender (including each Additional Lender) shall hold participations in each such LC Outstandings in the proportion its respective Commitment bears to the aggregate Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, The Borrower may from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten five days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new term loans (each, an “Incremental Revolving Commitment” or an “Incremental FacilityTerm Loan”); provided that provided, that:
(a) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the aggregate amount of all Incremental increases in the Aggregate Revolving Commitments plus the aggregate initial principal amount of all Incremental Term Loans after the Closing Date shall not exceed $50,000,000 500,000,000 plus an unlimited amount so long as the Consolidated Net Leverage Ratio is not greater than 3.00:1.00, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis (assuming the full amount of such increase in the aggregate over Aggregate Revolving Commitments is fully drawn and without “netting” the term cash proceeds thereof);
(b) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be in a minimum principal amount of $15,000,000 and in integral multiples of $1,000,000 in excess thereof;
(c) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, no Default or Event of Default shall exist and be continuing at the time of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the conditions set forth in Section 3.2 shall be satisfied as of the date of any increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan;
(e) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the Borrower shall have provided to the Administrative Agent a Pro Forma Compliance Certificate, in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance satisfactory to the Administrative Agent;
(g) with respect to any Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Latest Maturity Date or (y) the maturity date for any then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then-existing Incremental Term Loan;
(h) any increase in the Aggregate Revolving Commitments under this Section 2.23 shall have terms identical to those for the Revolving Loans under this Agreement. No , except for (i) upfront fees payable to the Lenders providing commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of such increase in the Aggregate Revolving Commitments;
(i) no Lender shall have any obligation to extend increase its Revolving Commitment or provide any Incremental Facility.Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender;
(bj) The Borrowers the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the Aggregate Revolving Commitments or an Incremental Term Loan Commitment, so long as (which may be, but need not be, one or more of the existing Lendersi) to extend such Incremental Facility Person (each, an “Additional Lender”)) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, which at (ii) any such Person proposed by the time agrees Borrower to extend such Incremental Facility; provided however, that any new bank or financial institution become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Issuing Bank and the Swingline Lender;
(k) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be pursuant to a commitment agreement, joinder agreement or other document in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld and upon the effectiveness of such commitment agreement, joinder agreement or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid document pursuant to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related feesthereof, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effectiveCommitments, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agentas applicable, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such commitment agreement, joinder agreement or other document and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.; and
(fl) Each supplement or joinder agreement referred with respect to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, increase in the reasonable opinion Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent and to prepay Revolving Loans of the Borrowersexisting Lenders, in an amount necessary such that after giving effect thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans (such payments to effect the provision of this existing Lenders shall be subject to Section 2.222.19), and for (ii) effective upon such increase, the avoidance amount of doubtthe participations held by each Lender in each Letter of Credit and each Swingline Loan then outstanding shall be adjusted automatically such that, this Section 2.22 after giving effect to such adjustments, the Lenders shall supersede any provisions hold participations in each such Letter of Sections 2.20 Credit or 11.2 such Swingline Loan in proportion to the contrarytheir respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as (i) no Default or Event of Default has occurred and is continuingcontinuing or would result therefrom and (ii) the representations and warranties in the Loan Documents will be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Additional Commitment Amount (except to the extent that such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), then from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 15 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)Agent, propose to increase the Aggregate Revolving Commitments (a “Revolving Commitment Increase”) or to establish one or more new additional term loans and/or increase an existing Class of Term Loans (each, an “Incremental Revolving Commitment” or Term Loan”) by an “amount not to exceed the Incremental Facility”); provided that Amount (the aggregate amount of all any such increase or the principal amount of any such Incremental Revolving Commitments shall not exceed Term Loan, the “Additional Commitment Amount”) and in a minimum amount of at least $50,000,000 in 2,000,000 or a larger multiple of $500,000. For the aggregate over the term avoidance of this Agreement. No doubt, no Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide any Incremental FacilityTerm Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers allocations with respect to any Revolving Commitment Increase or any Incremental Term Loan shall be determined by the Borrower. The Borrower may designate a any bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and/or provide an Incremental Facility Term Loan Commitment, as applicable, and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative AgentAgent and, which acceptance will in the case of an increase in the Aggregate Revolving Commitments, the Swingline Lender and Issuing Bank, in each case, to the extent required by Section 11.4. The sum of the increases in the Revolving Commitments and/or the principal amount of Incremental Term Loans of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments and/or the principal amount of Incremental Term Loans of the Additional Lenders shall not be unreasonably withheld or delayedin the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In With respect to any Incremental Term Loan that is in the case form of each Incremental Revolving Commitment:
a new Class of Term Loans, (i) any such Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory and voluntary repayments or prepayments of any other Term Loans, (ii) such Incremental Term Loan shall rank pari passu in right of payment and security with the Term Loans, be secured by the same Liens on the Collateral (with the same ranking in priority) that secure the Term Loans and benefit from the same Guarantee as the Term Loans (and not be secured by any other Liens or benefit from any other Guarantee), (iii) the final maturity date shall be no earlier than the latest Maturity Date for any then existing Term Loan, (iv) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then existing Term Loan, (v) if the interest rate margins for any such Incremental Term Loans are higher than the interest rate margins for the then existing Term Loans by more than 50 basis points (0.50%), then the interest rate margins for the then existing Term Loans shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term Loan minus 50 basis points; provided that, in determining the interest rate margins applicable to such Incremental Term Loan and the existing Term Loans, (w) any prepayment premiums, arrangement, commitment, structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or other fees that are not generally paid ratably to all lenders providing such Indebtedness or to one or more arrangers (or their affiliates) of such Indebtedness shall be excluded, (x) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID or upfront fees being equated to interest based on assumed four-year life to maturity), (y) if such Incremental Term Loan includes an interest rate floor greater than the applicable interest rate floor for the then existing Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the then existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors and (z) for purposes of calculating the adjustments pursuant to this clause (v), such Indebtedness, if it is fixed rate Indebtedness, shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent and the Borrower (this clause (v), the “MFN Provision”) and (vi) the other terms applicable to such Incremental Term Loans shall be substantially identical to, or (taken as a whole as determined by the Administrative Agent) no more favorable to the lenders providing such Incremental Term Loan than, those applicable to any then outstanding Term Loans (or otherwise be reasonably satisfactory to the Administrative Agent), except to the extent such terms (x) applied to the Term Loans existing at the time of incurrence of such Incremental Term Loan (so that existing Lenders also receive the benefit of such provisions) and/or (y) are applicable only to periods after the Maturity Date in in effect at the time of incurrence of such Indebtedness.
(d) (i) Any Revolving Commitment Increase shall have be on the same terms as (other than with respect to any upfront fees) and pursuant to the same documentation applicable to the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending amendment, supplement or joinder evidencing such Incremental Revolving Commitment); and
increase) and (ii) the outstanding Revolving any Incremental Term Loan that increases an existing Class of Term Loans and the Pro Rata Share of L/C Obligations will shall be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders same terms (including the Additional Lenders providing such Incremental Revolving Commitmentmaturity date, amortization and, other than with respect to upfront fees (but subject to clause (c)(v) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation above as if such reallocation were Incremental Term Loan was in the form of a repaymentseparate Class), interest rates) and pursuant to the same determination applicable to the Class of Term Loans being increased (other than the amendment, supplement or joinder evidencing such increase).
(de) An Incremental Revolving Commitment Increase or the establishment of any Incremental Term Loan pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an amendment, supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender providing a Revolving Commitment Increase or Incremental Term Loan Commitment, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence , it being understood that such amendment supplement or joinder may provide for customary “certain funds provisions” as agreed to by the Borrower and the Lenders providing an Incremental Term Loan Commitment to the extent the proceeds of appropriate corporate authorization such Incremental Term Loan are being used to fund any Permitted Acquisition or permitted Investment. Any such amendment, supplement or joinder may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. To the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received customary legal opinions, board resolutions, solvency certificates, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the part Closing Date under Section 3.1 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of the Borrowers with respect opinion reasonably satisfactory to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such complianceAdministrative Agent).
(ef) Upon the acceptance of any such agreement amendment, supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(fg) Each supplement or joinder agreement referred to in clause (d)(i) above may, without On the consent date of the making of any other LendersIncremental Term Loans that will be added to any Class of Term Loans, effect and notwithstanding anything to the contrary set forth herein, such amendments Incremental Term Loans shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the same type with the same Interest Period of the respective Class. Upon each increase in the Revolving Commitments pursuant to this Agreement Section 2.14, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the other Loan Documents as may Revolving Commitment increase (each, an “Incremental Revolving Increase Lender”), and each such Incremental Revolving Increase Lender will automatically and without further act be necessarydeemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and Swingline Loans held by each Lender (including each such Incremental Revolving Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment after giving effect to such increase in the reasonable opinion aggregate Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Revolving Commitment Increase is implemented, the Lenders immediately after the effectiveness of such Revolving Commitment Increase shall purchase and assign at par such amounts of the Revolving Loans outstanding at such time as the Administrative Agent may require such that each Lender holds its Pro Rata Share of all Revolving Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the BorrowersLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to effect the provision of transactions effected pursuant to this Section 2.222.23.
(h) Each of the parties hereto acknowledges and agrees that no XXXX Event may be closed until the date that is (a) if there are no Mortgaged Properties located in an area which has been identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, ten (10) days or (b) if there are any Mortgaged Properties located in an area which has been identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, thirty (30) days (in each case, the “Notice Period”), after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Mortgaged Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such Mortgaged Property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and for (if applicable) notification to the avoidance Borrower that flood insurance coverage is not available and (B) evidence of doubtthe receipt by the Borrower of such notice and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Mortgaged Property is located, this evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents”; provided that any such XXXX Event may be closed prior to the Notice Period if the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably withheld, conditioned or delayed).
(i) This Section 2.22 2.23 shall supersede any provisions of Sections 2.20 in Section 2.21 or 11.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount not to exceed the Additional Commitment Amount. Each Lender shall have the right for a period of all Incremental 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitments shall not exceed $50,000,000 in Commitment by a principal amount equal to its Pro Rata Share of the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (an "Additional Lender"), become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the previously unsubscribed amount of the Additional Commitment Amount pursuant to subsection (a).
(c) In the case of each Incremental Revolving Commitment:
addition to subsections (i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(aa) and (b) will be satisfied before above, so long as no Event of Default has occurred and after giving effect is continuing, the Borrower may, upon at least 30 days' prior written notice to the incurrence Administrative Agent (who shall promptly provide a copy of the Incremental Facility and (Bsuch notice to each Lender) after giving effect to such increase and the payment of any related feesadministrative agent under the Credit Services Credit Agreement, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect elect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, have (i) all Lenders that are also parties to the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Credit Services Credit Agreement increase their Revolving Commitments added through such agreement under this Agreement, and (ii) Schedule I shall automatically be deemed amended any other lenders party to reflect the Credit Services Credit Agreement that are not Lenders join this Agreement as a Lender and provide a new Revolving Commitment hereunder, in each case simultaneously with the termination by the Borrower of the Credit Services Revolving Commitments and the repayment in full of all Lenders after giving effect "Obligations" (as defined in the Credit Services Credit Agreement). Each Lender under this Agreement (i) agrees to increase its Revolving Commitment hereunder by the amount, if any, of its Credit Services Revolving Commitment and (ii) consents to the addition of such new Lenders hereunder that previously provided Credit Services Revolving Commitments but not Revolving Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in each case, subject to the reasonable opinion termination of the Administrative Agent Credit Services Revolving Commitments and repayment in full of all "Obligations" (as defined in the Borrowers, Credit Services Credit Agreement). Each Person that is not a Lender prior to effect the provision converting its Credit Services Revolving Commitment to a Revolving Commitment shall be deemed to be an Additional Lender for purposes of this Section 2.22, and for 2.24. The sum of the avoidance of doubt, increases in the Revolving Commitments pursuant to this Section 2.22 subsection (c) shall supersede any provisions of Sections 2.20 or 11.2 not in the aggregate exceed the Credit Services Revolving Commitments in effect immediately prior to the contrarytermination thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Haverty Furniture Companies Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Potential Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (Agent, who shall promptly provide a copy notify each Lender of such notice to each Lender)notice, propose to increase the Aggregate Revolving Commitments Commitment by $25,000,000 to a maximum amount not to exceed $300,000,000 (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments any such increase, the "Additional Commitment Amount"). Each Lender shall not exceed $50,000,000 in have the aggregate over right for a period of 15 days following receipt of such notice, to elect by written notice to Borrower and the term Administrative Agent to increase its Committed Sum by a principal amount equal to its Commitment Percentage of this Agreementthe Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Committed Sum or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Committed Sum shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Committed Sum pursuant to subsection (a) of this Section, Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Committed Sum and in the case of any other such Person (an "Additional Lender"), become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Committed Sums of the existing Lenders pursuant to this subsection (b) plus the Committed Sums of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.6 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder of an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Committed Sum is to be increased, setting forth the Incremental Revolving Commitments new Committed Sums of such Lenders and Additional Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate partnership authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitment and such opinions of a Responsible Officer of the Borrowers counsel for Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitment as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments Committed Sums added through such agreement and (ii) Schedule I 2.1 shall automatically be deemed amended to reflect the Commitments Committed Sums of all Lenders after giving effect to the addition of such CommitmentsCommitted Sums.
(fe) Each supplement or joinder agreement referred Upon any increase in the Commitment pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.6 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Borrowing then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Rate Borrowing then outstanding, Borrower shall prepay such Borrowings in their entirety and, to effect the provision of this Section 2.22, extent Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article VII, Borrower shall reborrow Borrowings from Lenders in proportion to their respective Commitment Percentage after giving effect to such increase, until such time as all outstanding Borrowings are held by Lenders in such proportion and (y) effective upon such increase, the amount of the participations held by each Lender in each LC then outstanding shall be adjusted such that, after giving effect to such adjustments, Lenders shall hold participations in each such LC in the proportion its Commitment Percentage after giving effect to such increase.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that the Borrower shall have received all consents, the Borrowers approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an aggregate amount not to exceed $300,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right, for a period of 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.19, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.19 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.19 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed $70,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that . Each Lender shall have the aggregate right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.23, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement supplement or joinder and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed $25,000,000 in the aggregate (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided provided, that the aggregate any such increase shall be in an amount of all Incremental Revolving Commitments not less than $10,000,000. Each Lender shall not exceed $50,000,000 in have the aggregate over right for a period of 15 days following receipt of such notice, to elect by written notice to the term Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of this Agreementthe Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.22, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments. Any such increases of the Commitments shall be promptly reflected in the Register.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.22 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Private Financial Holdings Inc)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate principal amount of the Revolving Commitments and/or establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increase or additional tranche, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $500,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”), and each such Incremental Commitment shall be in a minimum amount of $10,000,000 or increments of $5,000,000 in excess thereof;
(ii) [Reserved];
(iii) at the time of and immediately after giving effect to any such Incremental Commitment, (x) no Default or Event of Default shall exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such earlier date); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that the only representations and warranties the making of which shall be a condition to such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (I) the Specified Representations and (II) the representations and warranties made by or on behalf of the applicable target in the purchase, acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has occurred the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Affiliates’ or Subsidiaries’) obligations under such purchase, acquisition or other agreement as a result of a breach of such representations or warranties in such purchase, acquisition or other agreement (or the failure of such representations or warranties to be accurate or to satisfy the closing conditions in such purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”) and (z) to the extent there is continuinga condition that no Material Adverse Effect exists as of the date of the initial funding of such Incremental Commitment, from such condition shall be limited to the target of such Acquisition or Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans” and, the commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the time such Incremental Term Loans are incurred and shall have a Weighted Average Life to time Maturity no shorter than that of any previously established Incremental Term Loans (without giving effect to previous reductions in and previously made amortization payments on such previously established Incremental Term Loans), and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such Incremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the Restatement Effective Dateestablishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the Financial Covenants, calculated after giving effect to the funding of such Incremental Term Loans or Incremental Revolving Commitments (assuming such Incremental Revolving Commitments were fully funded), as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered or were required to have been delivered pursuant to Section 5.1(a) or 5.1(b) (including giving effect to the use of proceeds thereof and to any Acquisition consummated after the end of the such Fiscal Quarter and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Borrowers may, upon Lenders providing such Incremental Commitment may agree that such pro forma compliance shall be tested as of the date of the execution of the definitive documentation with respect to such Acquisition.
(b) The Borrower shall provide at least ten days(10) Business Days’ written notice (or such shorter period of time as may be agreed to by the Administrative Agent may agree to in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the Aggregate principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/ or the establishment of a tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Xxxxxx’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender and (y) not to be unreasonably withheld) and the Borrower as additional Lenders hereunder in accordance with this Section (the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Lenders”); provided that , which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the aggregate amount allocation of all such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not exceed $50,000,000 in the aggregate over exceed the term unsubscribed amount of this Agreement. No Lender shall have any obligation to extend any the Incremental FacilityCommitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility an originally executed copy of an instrument of joinder (each, an “Additional LenderIncremental Commitment Joinder”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated executed by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt Agent, by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fd) Each supplement or joinder agreement referred If any Incremental Term Loan Commitments are to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments be established pursuant to this Agreement and the Section, other Loan Documents than as may set forth herein, all terms with respect thereto shall be necessary, as set forth in the reasonable opinion applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent and the Borrowers, Borrower are expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Revolving Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the provision requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section 2.22Section, amendments to ensure pro rata allocations of SOFR Loans and for the avoidance of doubt, Base Rate Loans between Loans incurred pursuant to this Section 2.22 and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions of Sections 2.20 in Section 2.21 or 11.2 Section 10.2 to the contrary.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (by an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not to exceed $50,000,000 in (the aggregate over amount of any such increase, the term “Additional Commitment Amount”). Each Lender shall have the right for a period of this Agreement15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.22, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a of an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.22 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Samples: Revolving Credit Agreement (United Industrial Corp /De/)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers The Borrower may, upon at least ten 15 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), from time to time propose to increase the Aggregate Revolving Commitments by an amount not exceed $200,000,000 (an the amount of any such increase, the “Incremental Additional Revolving Commitment” or an “Incremental FacilityCommitment Amount”); provided that the aggregate each Additional Revolving Commitment Amount shall be in a principal amount of all Incremental not less than $10,000,000 or larger multiple of $5,000,000. Each Lender shall have the right for a period of 10 days following receipt of such notice, to elect by written notice to the Borrower and the Agent to increase its Revolving Commitments Commitment by a principal amount equal to its Pro Rata Share of the Additional Revolving Commitment Amount. Any Lender who does not respond within such 10 day period shall be deemed to have elected not exceed $50,000,000 in the aggregate over the term of this Agreementto increase its Revolving Commitment. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall elect not to increase its Revolving Commitment pursuant to paragraph (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, the Swing Line Lender and each Issuer, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this paragraph (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Revolving Commitment Amount.
(c) In An increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.21 shall be subject to the conditions set forth in paragraph (d) immediately below and the following conditions: (i) immediately prior to and after giving effect to any such increase, no Default or Unmatured Default has occurred or is continuing or shall result therefrom, (ii) immediately prior to and after giving effect to any such increase, the Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available and (iii) each Additional Lender shall become a Lender under this Agreement (or in the case of each Incremental Revolving Commitment:
(i) such Incremental an existing Lender, shall become an Additional Lender with respect to its Additional Revolving Commitment Amount) pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section and, as appropriate, the other Loan Documents and executed only by the Borrower and each Guarantor, each Additional Lender and the Agent. All Commitments in respect of any Additional Revolving Commitment Amount shall be Commitments under this Agreement and shall, on the date of the effectiveness of the applicable Incremental Facility Amendment, be added to the then existing Revolving Commitments, and all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment)fee; and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect provided that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect all upfront or similar fees, floors or original issue discount payable with respect to such increase and Additional Revolving Commitment Amount if the payment of any related fees, yield applicable to the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 Additional Revolving Commitment Amount (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount) is greater than the applicable yield paid pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Revolving Loans (including any Borrowings upfront fees, floors or original issue discount paid to the Lenders hereunder) plus 0.25% per annum, then this Agreement shall be made amended to provide that the interest rate with respect to the Revolving Loans shall be increased to an amount such that the yield under this Agreement on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
Loans (e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to all upfront or similar fees, floors or original issue discount paid with respect to the addition of Revolving Loans) shall equal the yield applicable to the proposed Additional Revolving Commitment Amount (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above Additional Revolving Commitment Amount)). An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the opinion of the Agent, to effect the provisions of this Section.
(d) The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the following conditions: (i) the conditions set forth in Section 4.4 (it being understood that all references to “such Loan” in such Section 4.4 shall be deemed to refer to proposed increase through the Additional Revolving Commitment Amount), (ii) the Borrower and the other Loan Parties shall have delivered such amendments, modifications and/or supplements to the Security Documents as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the Additional Revolving Commitment Amount is secured by, and entitled to the benefits of, the Security Documents, (iii) the Agent shall have received copies of resolutions executed by (x) the Borrower, authorizing the incurrence of such additional Obligations and (y) each Guarantor, stating that such additional Obligations are entitled to benefits of the Security Documents and other Loan Documents and (iv) the Borrower shall have delivered to the Agent an opinion or opinions, in form and substance reasonably satisfactory to the Agent, from counsel to the Borrower reasonably satisfactory to the Agent and dated such date, covering such of the Borrowersmatters set forth in the opinions of counsel delivered to the Agent on the Effective Date pursuant to Section 4.1(g) as may be reasonably requested by the Agent, and such other matters as the Agent may reasonably request.
(e) Upon the acceptance of any such agreement by the Agent, the Aggregate Revolving Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the provision addition of such Revolving Commitments.
(f) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.222.21 that is not pro rata among all Lenders, on the date that any such increase becomes effective, (x) each Lender increasing its Revolving Commitment and/or each Additional Lender providing a new Revolving Commitment, on the one hand, shall purchase from each other Lender, on the other hand, via one or more assignments in accordance with the terms of Section 12.3, at par (together with accrued interest), such interests in the Revolving Loans outstanding on the date any applicable increase becomes effective as shall be necessary in order that, after giving effect to all such assignments, all such outstanding Revolving Loans will be held by the Lenders ratably in accordance with their respective Revolving Commitments after giving effect to any such increase; and for (y) the avoidance amount of doubtthe participations held by each Lender in the outstanding L/C Obligations and outstanding Swing Line Loans shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in such outstanding L/C Obligations and outstanding Swing Line Loans in proportion to their respective Revolving Commitments after giving effect to any applicable increase. Each Lender that assigns a Revolving Loan to a Lender in accordance with this Section 2.22 paragraph (f) shall supersede any provisions of Sections 2.20 or 11.2 be entitled to the contraryfunding indemnity set forth in Section 3.4.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that (a) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Borrower set forth in the Borrowers Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $250,000,0002 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving . All Additional Commitments shall not exceed $50,000,000 in have the aggregate over same terms and conditions applicable to the term Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of this Agreement20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount equal to the Additional Commitment Amount, subject to allocations agreed by the Borrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”)) to become a party to this Agreement; provided, which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any EurodollarSOFR Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the provision of Lenders in proportion to their respective Commitments after giving effect to such increase. Prepayments made under this Section 2.22, and for the avoidance of doubt, this Section 2.22 2.21(e) shall supersede any provisions of Sections 2.20 or 11.2 not be subject to the contrarynotice requirements of Section 2.9.
Appears in 1 contract
Increase of Commitments; Additional Lenders. The Borrower shall have the right from time to time, upon at least five (5) Business Days’ prior written notice to the Administrative Agent (or twenty (20) days’ notice as set forth in clause (m) below), to increase the Aggregate Revolving Commitments or establish one or more additional term loans (each such term loan, an “Incremental Term Loan”) by up to $50,000,000, provided, that:
(a) So long no Default or Event of Default shall have occurred and be continuing on the date on which such increase in the Aggregate Revolving Commitments or Incremental Term Loan is to become effective;
(b) such increase in the Aggregate Revolving Commitments or Incremental Term Loan shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion);
(c) such increase in the Aggregate Revolving Commitments or Incremental Term Loan shall be effective only upon receipt by the Administrative Agent of (x) additional Revolving Commitments in a corresponding amount of such requested increase in the Aggregate Revolving Commitments or Incremental Term Loan Commitments from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 11.4 (each such institution, an “Additional Lender”) and which are reasonably acceptable to the Borrower, the Administrative Agent and, in the case of any increase in the Aggregate Revolving Commitments, the Issuing Banks and Swingline Lender and (y) documentation from each existing Lender or Additional Lender providing an additional Revolving Commitment or Incremental Term Loan Commitment evidencing its agreement to provide additional Revolving Commitment or Incremental Term Loan Commitment and/or its acceptance of the obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties, if required to be provided by the Lenders, providing such additional Revolving Commitments or such Incremental Term Loan Commitments) it may reasonably request relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments or establishment of such Incremental Term Loan and the validity of such increase in the Aggregate Revolving Commitments or establishment of such Incremental Term Loan, and any other documents relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received a Pro Forma Compliance Certificate from a Responsible Officer of the Borrower demonstrating compliance with the financial covenants hereunder after giving effect to such increase in the Aggregate Revolving Commitments (assuming, for purposes of such demonstration, that all Revolving Commitments, as increased, are fully drawn) or Incremental Term Loan on a Pro Forma Basis in form and substance reasonably satisfactory to the Administrative Agent; provided, that, in the case of an Incremental Term Loan subject to the Incremental Funds Certain Provision, such compliance will be determined at the time the applicable Acquisition Agreement is entered into (but not more than ninety (90) days prior to the consummation of such Permitted Acquisition);
(f) if any Revolving Loans are outstanding at the time of the increase in the Aggregate Revolving Commitments, the Borrower shall, if applicable, have prepaid one or more existing Revolving Loans (such prepayment to be subject to Section 2.19) in an amount necessary such that after giving effect to the increase in the Aggregate Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans;
(g) any increase in the Aggregate Revolving Commitments under this Section 2.23 shall have terms identical to those for the Revolving Loans under this Agreement, except for any fees that may be payable to the Lenders providing commitments for such increase in the Aggregate Revolving Commitments;
(h) amortization, pricing and use of proceeds applicable to any Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that (i) any such Incremental Term Loan shall have a final maturity date that is later than the Revolving Commitment Termination Date and the Maturity Date of each then outstanding Term Loan, (ii) the weighted average life to maturity of such Incremental Term Loan shall be no earlier than the weighted average life to maturity of the Term Loan A or any other then-existing Incremental Term Loan and (iii) with respect to any Incremental Term Loan established on or before the second anniversary of the Closing Date, 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 Arranger or its Affiliates) applicable to such Incremental Term Loan shall not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding Incremental Term Loan (it being understood that interest on the Term Loan A and any existing Incremental Term Loan may be increased to the extent necessary to satisfy this requirement);
(i) all conditions precedent to the making of a Loan and/or the issuance of a Letter of Credit set forth in Section 3.2 shall have been satisfied at the time of any increase in the Aggregate Revolving Commitments (even if there is no Borrowing thereunder on such date);
(j) no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide any Incremental Term Loan, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan shall be made in its sole discretion independently from any other Lender;
(k) neither the Arranger nor any Lender shall have any responsibility for arranging any such increased or additional Revolving Commitments or Incremental Term Loans without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith;
(l) prior to any increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan pursuant to this Section 2.23, either (i) the Convertible Note Indebtedness shall have been repaid in full (or repaid in full concurrently with any such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan) or (ii) the Administrative Agent shall have received reasonably satisfactory evidence that the holders of the Convertible Note Indebtedness have agreed that such increased Aggregate Revolving Commitments or Incremental Term Loan, as applicable, when taken together with the then existing Aggregate Revolving Commitments and the outstanding principal amount of all then existing Term Loans, will constitute Priority Senior Debt (as defined in the Convertible Note Subordination Agreement), which evidence may be in the form of an amendment to the Convertible Note Subordination Agreement) and is not prohibited under each of the Convertible Note Documents; and
(m) prior to the date of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan, the Administrative Agent shall have received (and promptly furnished to the Lenders) (i) a completed “life of loan” Federal Emergency Management Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and appropriate Loan Party relating thereto if required) and (ii) proof of flood insurance under the insurance policies required by Section 5.8(d); provided, that, notwithstanding anything to the contrary contained herein, if there are any Mortgaged Properties at the time of any increase or establishment of any Incremental Term Loan, the Administrative Agent shall have received (and promptly furnished to the Lenders) notice from the Borrower of such increase at least twenty (20) days prior to the date of such increase or establishment of such Incremental Term Loan. Notwithstanding anything to the contrary in the foregoing, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on the Borrower or any of its Subsidiaries, entered into in advance of the consummation thereof (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan shall be limited as follows: (A) the condition set forth in Section 3.2(b) shall apply only with respect to Specified Representations, (B) the representations and warranties in the Acquisition Agreement made by or with respect to the Acquired Business that are material to the interests of the Lenders shall be true and correct in all material respects, but only to the extent that the Borrower and/or any of its Subsidiaries, as applicable, has the right to terminate its or their obligations under the Acquisition Agreement or not consummate such Permitted Acquisition as a result of a breach of such representations in such Acquisition Agreement, and (C) the reference to “no Default or Event of Default” in Section 3.2(a) shall mean (1) the absence of a Default or Event of Default at the date the applicable Acquisition Agreement is executed and delivered and (2) the absence of a Specified Event of Default at the date the applicable Permitted Acquisition is consummated. For purposes of clarity, increases in the Aggregate Revolving Commitments shall not be subject at any time to the Incremental Funds Certain Provision. Nothing in the foregoing constitutes a waiver of any Default or Event of Default under this Agreement or of any rights or remedies of Lenders and the Administrative Agent under any provision of the Loan Documents. The provisions of this paragraph are collectively referred to in this Agreement as the “Incremental Funds Certain Provision”. For purposes of determining compliance on a Pro Forma Basis with the financial covenants in Article VI or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were the consummation of a repayment).
(d) An Permitted Acquisition using proceeds from an Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and Term Loan that qualifies to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect subject to the Incremental FacilityFunds Certain Provision, and
(iii) a certificate the date of a Responsible Officer determination shall, at the option of the Borrowers to Borrower, be the effect that (A) the conditions set forth in Section 4.2(a) date of execution of such Acquisition Agreement, and (b) will such determination shall be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) made after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 Acquisition (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may transactions to be necessary, entered into in the reasonable opinion connection therewith (including any incurrence of the Administrative Agent Indebtedness and the Borrowersuse of proceeds thereof)) on a Pro Forma Basis, to effect the provision of this Section 2.22and, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions if such financial covenants or other ratio requirement is subsequently breached as a result of Sections 2.20 fluctuations in the ratio that is subject of such financial covenants or 11.2 other ratio requirement (including due to fluctuations in Consolidated EBITDA of the Borrower or the EBITDA of the Acquired Business), at or prior to the contraryconsummation of such Acquisition (and the other transactions to be entered into in connection therewith), such financial covenants or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided; that (x) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), (I) the Incremental Term Loan to be incurred shall be deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition (in which case such Acquisition and related Incremental Term Loan will not be treated as having occurred)) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable financial covenants or other ratio requirement in this Agreement (even if unrelated to determining whether such Acquisition is a Permitted Acquisition) and (II) such Permitted Acquisition must close within ninety (90) days of the signing of the applicable Acquisition Agreement and (y) EBITDA of the Acquired Business shall be disregarded for all purposes under this Agreement other than determining whether such Acquisition is a Permitted Acquisition until the consummation of such Permitted Acquisition.
Appears in 1 contract
Increase of Commitments; Additional Lenders. At any time before the Extended Revolving Commitment Termination Date, subject to the terms and conditions set forth herein, the Borrower may at any time and from time to time, by notice to the Administrative Agent (awhereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add additional term loans or additional Extended Revolving Commitments (together, the “Incremental Extensions of Credit”) So long in minimum principal amounts of $10,000,000 (or $25,000,000 if a new Class of Term Loans is being created); provided that such amount may be less than $10,000,000 (or $25,000,000, as applicable) if such amount represents all the remaining available principal amount set forth below; provided, further, that (i) immediately prior to and after giving effect to any Incremental Facility Amendment (as defined below), no Default or Event of Default has occurred or is continuing or shall result therefrom, and is continuing(ii) the Borrower shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Article VI recomputed as of the last day of the most recently ended Fiscal Quarter for which financial statements are available. The Incremental Extensions of Credit:
(a) shall be in an aggregate principal amount (for this purpose, from time to time after treating the Restatement Effective Date, the Borrowers may, upon at least ten days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate full amount of all Incremental additional Extended Revolving Commitments shall as principal) not exceed exceeding $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.200,000,000;
(b) The Borrowers may designate a bank or other financial institution shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and Term Loans;
(which may bec) in the case of additional Extended Revolving Commitments, but need not beshall, on the date of the effectiveness of the applicable Incremental Facility Amendment, be added to the then existing Extended Revolving Commitments, and all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Extended Revolving Commitments; and
(d) in the case of additional term loans shall either (x) be added to, and form part of the same Class as, one or more of Classes (as specified in the existing Lenders) to extend such respective Incremental Facility Amendment) of theretofore outstanding Term Loans (each, an “Additional Lender”), in which at case the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment same shall have the same terms as the existing Revolving Commitments respective Class or Classes to which it is added) or (y) shall represent a new Class of term loans, in which case such new Class of term loans shall have the same terms and be entitled to all of the same rights and privileges (other than any initial upfront fees paid amortization and maturity date, which shall be required to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effectivefollowing proviso, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such complianceother than pricing).
(e) Upon , as the acceptance of any such agreement by the Administrative Agent, Term Loans; provided that (i) the Aggregate Incremental Extensions of Credit in the form of term loans shall not have a final maturity date earlier than the Maturity Date or the Extended Revolving Commitment Amount shall automatically be increased by Termination Date then applicable to the amount of the Incremental Revolving Commitments added through such agreement latest-maturing Loans, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments Incremental Extensions of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, Credit in the reasonable opinion form of a new Class of term loans shall not have a weighted average life to maturity that is shorter than that of the Administrative Agent and then remaining weighted average life to maturity of the Borrowers, Class of Term Loans with the then longest remaining weighted average life to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarymaturity.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments and/or provide incremental Term Loans hereunder (each such increase, an "Incremental Commitment") so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the "Incremental Commitment Amount");
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist and is continuingall representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, from time in which case such representations and warranties shall be true and correct in all respects, (ii) representations and warranties effective as of a specified date, which shall remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement);
(iv) (x) any incremental Term Loans made pursuant to time after this Section (the Restatement Effective "Incremental Term Loans") shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the "Incremental Revolving Commitments") shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the Borrowers mayfirst day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Term Loans or Eurodollar Revolving Loans, upon as applicable, plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans or the existing Revolving Commitments, as applicable (the "Existing Yield"), then the Applicable Margin of the existing Term Loans or the existing Revolving Loans, as applicable, shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) except with respect to amortization, pricing and final maturity as set forth above in this clause (a), any Incremental Term Loan shall be on terms consistent with the Term Loans; and any Incremental Revolving Commitments shall be on terms (including all-in pricing and maturity date) consistent with the Revolving Commitments.
(b) The Borrower shall provide at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (the "Increasing Lenders") that agree to provide Incremental Commitments, which fees may be variable based upon the amount of any such Lender's Incremental Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the Aggregate aggregate principal amount of its Revolving Commitment and/or to provide any additional Term Loan, and any decision by a Lender to increase its Revolving Commitment and/or provide any additional Term Loan shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or to provide any additional Term Loan, as applicable, pursuant to this Section, and then only with respect to the increased Commitment(s) of such Lender. No Lender that declines to provide an Incremental Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender's consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide an Incremental Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide an Incremental Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (an “such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the "Additional Lenders"), which Additional Lenders may assume all or a portion of such Incremental Revolving Commitment” or an “Incremental Facility”); provided that . The Borrower and the aggregate amount Administrative Agent shall have discretion jointly to adjust the allocation of all such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the aggregate Incremental Commitments of the Increasing Lenders and the Additional Lenders provided after the Closing Date shall not exceed $50,000,000 in the aggregate over exceed the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityCommitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility (eachan originally executed copy of an instrument of joinder, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in subsection (ia) of this Section has been satisfied;
(iv) to the Aggregate extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitment Amount shall automatically be increased Commitments and/or such Incremental Term Loans, issued by the amount Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fe) Each supplement If any Incremental Term Loans are to have terms that are different from the Term Loans or joinder the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the "Non-Conforming Credit Extensions"), all such terms shall be as set forth in a separate assumption agreement referred among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to in clause (d)(i) above may, without the consent effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.11 shall be ratably increased after the making of any Incremental Term Loans (other Lendersthan Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions that are Term Loans, effect all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such amendments to Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Agreement Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the other Loan Documents as may be necessaryRevolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision any such incurrence). For purposes of this Section 2.22Section, and for the avoidance of doubt, this Section 2.22 following terms shall supersede any provisions of Sections 2.20 or 11.2 to have the contrary.meanings specified below:
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Tivity Health, Inc.)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten days(10) Business Days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments and/or the aggregate Term Loan Commitments by an amount not to exceed, in the aggregate, $20,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that , so long as (i) neither the aggregate amount Maturity Date nor the Revolving Commitment Termination Date, as applicable, has occurred, (ii) no Default or Event of Default has occurred and is continuing or would result therefrom (or from the making any new Loans thereunder), (iv) all Incremental Revolving Commitments conditions precedent set forth in Article III of this Agreement are satisfied in connection therewith (including, without limitation, the delivery by Borrower of any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction, including any supplements, joinders or amendments to the Collateral Documents providing for such Additional Commitment Amounts to be secured thereby), (v) Borrower delivers to Administrative Agent a Compliance Certificate executed by a Responsible Officer of Borrower reflecting Pro Forma compliance with the financial covenants set forth in Article VI after giving effect to the Additional Commitment Amount, including the new Loans to be made thereunder, (vi) all new Loans made with respect to any Additional Commitment Amounts shall share pari passu in the collateral securing the Obligations, (vii) all new Loans made with respect to any Additional Commitment Amounts shall share ratably in any mandatory prepayments of existing Loans based upon their respective Class, (viii) with respect to Additional Commitment Amounts comprised of new Term Loan Commitments, the maturity date of new Term Loans shall not exceed $50,000,000 be earlier than the Maturity Date and the weighted average life to maturity of any such new Term Loans shall be equal to or greater than the weighted average life to maturity of the Terms Loans existing prior to any Additional Commitment Amounts, (ix) with respect to Additional Commitment Amounts comprised of new Aggregate Revolving Commitments, the revolving commitment termination date of any such new Additional Commitment Amounts shall not be earlier than the Revolving Commitment Termination Date, and (x) the all-in yield (including interest rate margins and upfront fees (based upon the aggregate over lesser of a four-year average life to maturity or the term remaining life to maturity) applicable to any new Loans issued in connection with any Additional Commitment Amount (regardless of this AgreementClass), shall not be more than 50 basis points higher than the corresponding all-in yield (determined on the same basis) applicable to the Revolving Loans or Terms Loans existing prior to the existence of any Additional Commitment Amount, unless the interest rate margin with respect to Revolving Loans and Term Loans existing prior to any such Additional Commitment Amount, as the case may be, are increased by an amount equal to the difference between the all-in yield with respect to such new Revolving Loan or new Term Loans (as applicable). Each Lender shall have the right for a period of ten (10) days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment and/or Term Loan Commitment (as applicable) by a principal amount equal to its Pro Rata Share of the proposed Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment, its Term Loan Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment or Term Loan Commitment shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment or Term Loan Commitment (as applicable) within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment or Term Loan Commitment (as applicable).
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment or its Term Loan Commitment (as applicable) pursuant to subsection (a) of this Section 2.23, the Borrower may designate a bank one or more other banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Revolving Commitment or its Term Loan Commitment (each, as applicable) and in the case of any other such Person (an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments and/or Term Loan Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments and/or Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment and/or Term Loan Commitments pursuant to this Section 2.22 2.23 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment and/or Term Loan Commitment (as applicable) is to be increased, setting forth the Incremental new Revolving Commitments and/or Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers , together with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to Notes evidencing such increase and in the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Commitments.
(ed) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount and/or the aggregate Term Loan Commitments (as applicable) shall automatically be increased by the amount of the Incremental Revolving Commitments and/or Term Loan Commitments added through such agreement supplement or joinder, and (ii) Schedule I II shall automatically be deemed amended to reflect the Revolving Commitments and/or Term Loan Commitments of all Lenders after giving effect to the addition of such CommitmentsRevolving Commitments and/or Term Loan Commitments (as applicable).
(fe) Each supplement or joinder agreement referred Upon any increase in the aggregate amount of the Revolving Commitments and/or Term Loan Commitments pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.23 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary(x) within five (5) Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans or Index Rate Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments and/or Term Loan Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Exactech Inc)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) each of the conditions set forth in Section 3.2 shall be satisfied;
(ii) no Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the Borrowers may“Incremental Commitment Amount”);
(iv) any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Maturity Date;
(v) the Borrower and its Subsidiaries shall be in compliance with the Incurrence Test;
(vi) if the Initial Yield applicable to any such Incremental Commitment exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Revolving Loans plus one fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments (the “Existing Yield”), upon then the Applicable Margin of the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum; and
(vii) any Collateral securing any such Incremental Commitment shall also secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least ten days(10) Business Days’ written notice (or such shorter period of time as agreed by the Administrative Agent may agree to in its sole discretionAgent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender)) of any proposal to establish an Incremental Commitment. Each such notice shall specify the date (each, propose an “Increase Effective Date”) on which the Borrower proposes that the Incremental Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. The Borrower may, but is not required to, specify any fees offered to those Lenders that agree to increase the Aggregate principal amount of their Revolving Commitments (each, an “Incremental Increasing Lender”, and collectively, the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate over the term of this Agreement. No Lender shall have any obligation obligation, express or implied, to extend any Incremental Facility.
(b) The Borrowers may designate a bank or other financial institution (which may be, but need not be, one or more offer to increase the aggregate principal amount of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental its Revolving Commitment:
(i) such Incremental , and any decision by a Lender to increase its Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming in its sole discretion independently from any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.other
Appears in 1 contract
Samples: Credit Agreement (Landmark Infrastructure Partners LP)
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from From time to time after the Restatement Effective DateClosing Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrowers mayBorrower may from time to time, upon at least ten daysfive (5) Business Days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment” ”) or to increase any existing Term Loan or establish one or more new additional term loans (each, an “Incremental FacilityTerm Loan”); provided that provided, that:
(i) the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not exceed $50,000,000 in the aggregate over Maximum Incremental Facility Amount immediately after giving effect to the term establishment of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.Revolving Commitment or Incremental Term Loan;
(bii) The Borrowers may designate any Incremental Revolving Commitment or establishment of an Incremental Term Loan shall be in a bank minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof;
(iii) no Default or other financial institution (which may be, but need not be, one or more Event of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which Default shall exist and be continuing at the time agrees of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(iv) the conditions set forth in Section 3.2 shall be satisfied as of the date of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(v) the Borrower shall have provided to extend such Incremental Facility; provided howeverthe Administrative Agent a Pro Forma Compliance Certificate, that any new bank or financial institution must be in form and detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In demonstrating compliance with the case of each Incremental Revolving Commitment:
(i) financial covenants in Article VI after giving effect to such Incremental Revolving Commitment shall have or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, that the same terms as the existing Aggregate Revolving Commitments (other than including any initial upfront fees paid Incremental Revolving Commitments) are fully drawn and funded); provided, that, in the case of an Incremental Term Loan subject to the Additional Lenders extending Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into;
(vi) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share Commitments or such establishment of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make Term Loan, all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Agent;
(vii) (A) the Applicable Margin of each Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for SOFR Term Loans plus one fourth of the Up-Front Fees paid in respect of the Term Loans (the “Existing Yield”), then the Applicable Margin of the Term Loans shall increase by an amount equal to the Borrowers difference between the Initial Yield and by each Additional Lender setting forth the Existing Yield, and (B) any Incremental Term Loans made pursuant to this Section 2.25 shall have a maturity date no earlier than the latest existing Maturity Date or the then applicable Revolving Commitment Termination Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loan A or any other then-existing Incremental Term Loan;
(viii) any Incremental Revolving Commitments under this Section 2.25 shall have terms identical to those for the Revolving Commitments under this Agreement, other than with respect to the payment of such Lenders Up-Front Fees;
(ix) no Lender shall have any obligation to provide any Incremental Revolving Commitment or any Incremental Term Loan, and setting forth the agreement of each Additional any decision by a Lender to become provide any Incremental Revolving Commitment or any Incremental Term Loan shall be made in its sole discretion independently from any other Lender;
(x) the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any Incremental Revolving Commitments or an Incremental Term Loan, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to a lender joinder agreement or other document in form and substance satisfactory to be bound the Administrative Agent that has been executed by all the terms Borrower and provisions hereof,
such Additional Lender, (ii) evidence of appropriate corporate authorization on any such Person proposed by the part Borrower to become an Additional Lender must be reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Borrowers with respect to Issuing Banks and the Incremental Facility, andSwingline Lender;
(iiixi) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment Commitments or establishment of an Incremental Term Loan shall be pursuant to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such an agreement in writing entered into by the Loan Parties, the Administrative AgentAgent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Revolving Commitments or Incremental Term Loan, as applicable (i) each an “Incremental Facility Amendment”), and upon the Aggregate Revolving Commitment Amount effectiveness of such Incremental Facility Amendment pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement Incremental Facility Amendment and (iiSchedule 1.1(a) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments;
(xii) with respect to any Incremental Revolving Commitments, (i) if any Revolving Loans are outstanding upon giving effect to any Incremental Revolving Commitments, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.20) in an amount necessary such that after giving effect to such Incremental Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans and (ii) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments;
(xiii) the Borrower shall pay any applicable upfront or arrangement fees in connection with such Incremental Revolving Commitments or Incremental Term Loan;
(xiv) subject to the limitations set forth in Section 2.25(a)(vii), the amortization or other repayment requirements, the pricing and the use of proceeds applicable to any such Incremental Term Loan shall in each case be set forth in the definitive documentation with respect to such Incremental Term Loan;
(xv) any such Incremental Revolving Commitment or Incremental Term Loan shall (A) rank pari passu in right of payment as the other Loans and Commitments, (B) not be guaranteed by any Person that is not a Guarantor, and (C) if the Trigger Event has not occurred, shall be unsecured and, if the Trigger Event has occurred, shall be secured by the Collateral on a pari passu basis with the existing Obligations;
(xvi) all other terms and conditions with respect to any such Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender; and
(xvii) all other terms and conditions with respect to any such Incremental Term Loan shall be set forth in the applicable Incremental Facility Amendment and be reasonably satisfactory to the Lenders providing such Incremental Term Loan.
(fb) Each supplement Upon the effectiveness of any such Incremental Revolving Commitment or joinder agreement any Incremental Term Loan, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule 1.1(a) shall automatically be deemed amended accordingly.
(c) Notwithstanding anything to the contrary in this Section 2.25, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on Holdings, the Borrower or any of its Restricted Subsidiaries, entered into in advance of the consummation thereof that does not provide for a “financing out” (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan may, at the option of the Borrower, be limited as follows: (A) the condition set forth in Section 3.2(b) shall apply only with respect to Specified Representations, (B) all representations and warranties of each Loan Party (excluding for the avoidance of doubt any target entities or subsidiaries thereof to be acquired in connection with any Permitted Acquisition) set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) at the date the applicable Acquisition Agreement is executed and delivered; provided, that to the extent such representation or warranty relates to a specific prior date, such representation or warranty shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) only as of such specific prior date; (C) the representations and warranties in the Acquisition Agreement made by or with respect to the Person or assets subject to the Permitted Acquisition that are material to the interests of the Lenders shall be true and correct in all material respects, but only to the extent that Holdings, the Borrower and/or any of its Restricted Subsidiaries, as applicable, has the right to terminate its or their obligations under the Acquisition Agreement or not consummate such Permitted Acquisition as a result of a breach of such representations in such Acquisition Agreement and (D) the reference to “no Default or Event of Default” in Section 3.2(a) shall mean (1) the absence of a Default or Event of Default at the date the applicable Acquisition Agreement is executed and delivered and (2) the absence of a Specified Event of Default at the date the applicable Permitted Acquisition is consummated. For purposes of clarity, the establishment of Incremental Revolving Commitments shall not be subject at any time to the Incremental Funds Certain Provision. Nothing in the foregoing constitutes a waiver of any Default or Event of Default under this Agreement or of any rights or remedies of Lenders and the Administrative Agent under any provision of the Loan Documents. The provisions of this paragraph are collectively referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement as the “Incremental Funds Certain Provision”. For purposes of determining compliance on a Pro Forma Basis with the financial covenants in Article VI or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and is continuing, in each case in connection with the consummation of an Acquisition using proceeds from an Incremental Term Loan that qualifies to be subject to the Incremental Funds Certain Provision, the date of determination shall, at the option of the Borrower, be (A) the date of funding of such Incremental Term Loan, or (B) the date of execution of such Acquisition Agreement, and such determination shall be made after giving effect to such Acquisition (and the other Loan Documents as may transactions to be necessaryentered into in connection therewith, in the reasonable opinion including any incurrence of the Administrative Agent Indebtedness and the Borrowersuse of proceeds thereof) on a Pro Forma Basis, to effect the provision of this Section 2.22and, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions if such financial covenants or other ratio requirement is subsequently breached as a result of Sections 2.20 fluctuations in the ratio that is subject of such financial covenants or 11.2 other ratio requirement (including due to fluctuations in Consolidated EBITDA of Holdings, the Borrower and its Restricted Subsidiaries on a consolidated basis or the EBITDA (calculated in a manner consistent with the calculation of Consolidated EBITDA) of the acquired Person or assets), at or prior to the contraryconsummation of such Acquisition (and the other transactions to be entered into in connection therewith), such financial covenants or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided; that (x) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), the Incremental Term Loan to be incurred shall be deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition, in which case such Acquisition and related Incremental Term Loan will not be treated as having occurred) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable financial covenants or other ratio requirement in this Agreement (even if unrelated to determining whether such Acquisition is a Permitted Acquisition) including for purposes of determining the Applicable Margin or compliance with Sections 6.1 and 6.2 and (y) EBITDA (calculated in a manner consistent with the calculation of Consolidated EBITDA) of the acquired business shall be included for all purposes under this Agreement (including for purposes of determining the Applicable Margin or compliance with Sections 6.1 and 6.2) until the consummation of such Permitted Acquisition.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Closing Date, the Borrowers Borrower may, upon at least ten 30 days’ ' written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), who shall promptly notify the Lenders, propose to increase the Aggregate Revolving Commitments Commitment Amount up to an amount not to exceed $150,000,000 (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that the aggregate amount of all Incremental any such increase, the "Additional Commitment Amount"). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitments shall not exceed $50,000,000 in Commitment by a principal amount equal to its Pro Rata Share of the aggregate over the term of this AgreementAdditional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any Incremental Facilitydecision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in the case of any other such Person (an "Additional Lender"), become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(c) In An increase in the case aggregate amount of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
of a lender joinder agreement in the form of Exhibit E (ithe "Lender Joinder") a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrowers and Borrower, by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , together with such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Revolving Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Revolving Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule Annex I shall automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of such Revolving Commitments.
(e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section that is not pro rata among all Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in such proportion and (y) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion its respective Revolving Commitment bears to the aggregate Revolving Commitments after giving effect to such increase.
(f) Each supplement Notwithstanding the foregoing, the Borrower may designate new banks or joinder agreement referred other financial institutions to in clause (d)(i) above may, without provide Additional Commitments hereunder during the consent of any other Lenders, effect such amendments first 60 days after the Closing Date by providing no more than three Business Days' written notice to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent (or such shorter period as the Administrative Agent shall agree) and without first offering such Additional Commitments to existing Lenders pursuant to clause (a) above, so long as the Borrowers, other conditions to effect increasing the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contraryaggregate Revolving Commitments are met.
Appears in 1 contract
Samples: Revolving Credit Agreement (Priority Healthcare Corp)
Increase of Commitments; Additional Lenders. (a) So From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all the Aggregate Revolving Commitments shall not exceed $275,000,000 (the “Maximum Commitment Amount”) after any incremental increase hereunder;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default has occurred shall exist, all representations and is continuingwarranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, from time to time after in which case such representations and warranties shall be true and correct in all respects), and, since the Restatement Effective Closing Date, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Borrowers mayRevolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the Financial Covenants as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, upon calculated as if all such Incremental Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance; and
(vi) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. Each Lender that agrees to increase the principal amount of its Revolving Commitment (an “Increasing Lender”) shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), propose which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to increase adjust the allocation of such Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the Aggregate Revolving Commitments (an “Incremental Revolving Commitment” or an “Incremental Facility”); provided that of the aggregate amount of all Incremental existing Lenders plus the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not exceed $50,000,000 in the aggregate over exceed the term of this Agreement. No Lender shall have any obligation to extend any Incremental FacilityMaximum Commitment Amount.
(c) Subject to subsections (a) and (b) The Borrowers may designate a bank or other financial institution (which may beof this Section, but need not be, one or more any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the existing Lendersfollowing documents:
(i) to extend such Incremental Facility (eachan originally executed copy of an instrument of joinder, an “Additional Lender”), which at the time agrees to extend such Incremental Facility; provided however, that any new bank or financial institution must be in form and substance reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated executed by the Administrative Agent on Agent, the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof,;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Facility, andCommitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer of the Borrowers Officer, in form and substance reasonably acceptable to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, certifying that each of the conditions in clauses (i), (iii) and (v) of subsection (a) of this Section has been satisfied;
(iv) to the Aggregate Revolving Commitment Amount shall automatically be increased extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments issued by the amount Borrower in accordance with Section 2.10(b); and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitmentsaccordingly.
(fe) Each supplement or joinder If any Incremental Commitments are to have terms that are different from the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement referred to in clause (d)(i) above mayamong the Borrower, without the consent of any other Lenders, effect Lenders providing such amendments to this Agreement Incremental Commitments and the other Loan Documents Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Commitments under this Section, regardless of whether such Incremental Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as may be necessarybetween the Incremental Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, in the reasonable opinion of the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Borrowers, Revolving Commitments outstanding immediately prior to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrarysuch incurrence).
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Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, The Borrower may from time to time after the Restatement Effective Date, the Borrowers maytime, upon at least ten five days’ prior written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new term loans (each, an “Incremental Revolving Commitment” or an “Incremental FacilityTerm Loan”); provided that provided, that: (a) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the aggregate amount of all Incremental increases in the Aggregate Revolving Commitments plus the aggregate initial principal amount of all Incremental Term Loans after the Closing Date shall not exceed $50,000,000 500,000,000 plus an unlimited amount so long as the Consolidated Net Leverage Ratio is not greater than 3.00:1.00, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis (assuming the full amount of such increase in the aggregate over Aggregate Revolving Commitments is fully drawn and without “netting” the term of this Agreement. No Lender shall have any obligation to extend any Incremental Facility.
cash proceeds thereof); (b) The Borrowers may designate any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be in a bank minimum principal amount of $15,000,000 and in integral multiples of $1,000,000 in excess thereof; (c) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, no Default or other financial institution (which may be, but need not be, one or more Event of the existing Lenders) to extend such Incremental Facility (each, an “Additional Lender”), which Default shall exist and be continuing at the time agrees to extend such of any increase in the Aggregate Revolving Commitments or establishment of an Incremental FacilityTerm Loan; provided however(d) subject, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed.
(c) In in the case of each an Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid Term Loan being used to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant finance a Limited Condition Acquisition, to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment pursuant to this Section 2.22 shall become effective upon the receipt by the Administrative Agent of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers and by each Additional Lender setting forth the Incremental Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) evidence of appropriate corporate authorization on the part of the Borrowers with respect to the Incremental Facility1.8, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in Section 4.2(a) and (b) will 3.2 shall be satisfied before and after giving effect to the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance).
(e) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.
(f) Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 to the contrary.as
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Increase of Commitments; Additional Lenders. (a) So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective DateClosing Date and provided that (a) at the time of and immediately after giving effect to any such proposed increase, no Default or Event of Default shall exist, all representations and warranties of each Borrower set forth in the Borrowers Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect, (b) the Borrower shall be in pro forma compliance with Section 5.2 as of the most recently ended fiscal quarter for which financial statements have been delivered, calculated as if all such Additional Revolving Commitments had been established as of the first day of the relevant period for testing compliance and (c) the Borrower shall have received all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, Borrower may, upon at least ten 30 days’ written notice (or such shorter period of time as the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments up to an aggregate amount not to exceed $250,000,000 (an the amount of any such increase, the “Incremental Revolving Commitment” or an “Incremental FacilityAdditional Commitment Amount”); provided that the aggregate amount of all Incremental Revolving . All Additional Commitments shall not exceed $50,000,000 in have the aggregate over same terms and conditions applicable to the term Commitments established on the Closing Date, including without limitation, as to yield, maturity and amortization. Each Lender shall have the right, for a period of this Agreement20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to extend increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any Incremental Facilitydecision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) The Borrowers If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may designate a another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) to extend which at the time agrees to, in the case of any such Incremental Facility Person that is an existing Lender, increase its Commitment and in the case of any other such Person (each, an “Additional Lender”), which at the time agrees become a party to extend such Incremental Facilitythis Agreement; provided provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) In An increase in the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Aggregate Commitment shall have the same terms as the existing Revolving Commitments (other than any initial upfront fees paid to the Additional Lenders extending such Incremental Revolving Commitment); and
(ii) the outstanding Revolving Loans and the Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a repayment).
(d) An Incremental Revolving Commitment Amount pursuant to this Section 2.22 2.21 shall become effective upon the receipt by the Administrative Agent of:
(i) of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrowers Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be increased, setting forth the Incremental Revolving new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof,
(ii) , and such evidence of appropriate corporate authorization on the part of the Borrowers Borrower with respect to the Incremental Facility, and
(iii) a certificate increase in the Commitments and such opinions of a Responsible Officer of counsel for the Borrowers Borrower with respect to the effect that (A) increase in the conditions set forth in Section 4.2(a) and (b) will be satisfied before and after giving effect to Commitments as the incurrence of the Incremental Facility and (B) after giving effect to such increase and the payment of any related fees, the Borrowers would be in compliance on a pro forma basis with the covenants set forth in Section 8.4 (after giving effect to any Borrowings to be made on the date that the Incremental Facility becomes effective, and deeming any Incremental Revolving Commitment to be fully drawn for purposes of calculating such compliance)Administrative Agent may reasonably request.
(ed) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added or increased through such agreement and (ii) Schedule I II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition and increase of such Commitments.
(fe) Each supplement or joinder agreement referred Upon any increase in the Aggregate Commitment Amount pursuant to in clause (d)(i) above may, without the consent of any other this Section 2.21 that is not pro rata among all Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarywithin five Business Days, in the reasonable opinion case of any Base Rate Loans then outstanding, and at the end of the Administrative Agent and then current Interest Period with respect thereto, in the Borrowerscase of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to effect the provision of this Section 2.22, extent the Borrower elects to do so and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or 11.2 subject to the contraryconditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.
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