Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”); (ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (A) no Default or Event of Default shall exist, (B) 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); 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 and (C) since December 31, 2013, there shall have been no change which has 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 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 2.6, 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 compliance on a pro forma basis with each of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded); (vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and (vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees; (viii) 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 five Business Days’ 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the 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 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. 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 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, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request; (iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) shall automatically be deemed amended accordingly. (e) For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Aaron's Inc)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 75,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 Incremental Commitment, (Ax) 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 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), (Bb), (g), (h) or (i), 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 Maturity Revolving Commitment Termination Date in effect at the time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of the any previously established Incremental Term Loans (without giving effect to previous reductions in and previously made pursuant to Section 2.6amortization 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 a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 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) the Borrower and its Subsidiaries shall be in compliance on a pro forma basis with each of the financial covenants set forth Financial Covenants, calculated (x) in Article VI after 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 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 (b) and on or prior to such date which is funded with such Incremental Term Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five ten (10) Business Days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 its provide an Incremental Term Loan Commitment 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. 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 approval 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the 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 is 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 requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Restatement Date but before the termination of this Agreement 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 Revolving Commitment”) and/or make term loan commitments hereunder (an “Incremental Term Loan Commitment”; together with the Incremental Revolving Commitment, the “Incremental Commitments”) so long as the following conditions are satisfied:
(i) (A) unless otherwise agreed by the Administrative Agent, each Incremental Commitment pursuant to this Section shall be in an amount not less than $10,000,000, and (B) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (an aggregate amount equal to the principal amount of each such Incremental Commitment, the “Maximum Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (A) no Default or Event of Default shall existexist or, in the case of any Incremental Term Loan Commitment established to finance a Limited Condition Transaction, no Event of Default under Sections 8.1(h) or 8.1(i) exists or would result from such Limited Condition Transaction; provided, that, in the case of any Incremental Term Loan Commitment established to finance a Limited Condition Transaction, the date of determination of whether the condition in this clause (Biii) has been satisfied shall, at the option of the Borrower, be the LCT Test Date for such Limited Condition Transaction;
(iv) 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); 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 materialityprovided that, in which the case of any Incremental Term Loan Commitment established to finance a Limited Condition Transaction, such representations and warranties shall may be true and correct in all respects) only as of such specific prior date and (C) since December 31, 2013, there shall have been no change which has had or could reasonably be expected limited to have a Material Adverse Effectcustomary “SunGard” specified representations;
(ivv) any incremental Term Loans term loans made pursuant to this Section (the “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 2.6, and Date;
(yvi) any incremental 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 compliance on a pro forma basis with each of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded);
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Revolving Commitments hereunder, including, without limitation, the Revolving Commitment Termination Date and Applicable Margin;
(vii) Parent and its Subsidiaries shall be in compliance with the financial covenant set forth in Article VI as of the last day of the most recently ended four Fiscal Quarter period for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b), calculated on a Pro Forma Basis and 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 (but calculated without including the cash proceeds of any such Incremental Term Loans or Incremental Revolving Commitments in the amount of unrestricted cash and Cash Equivalents to be netted in the calculation of Consolidated Total Net Leverage Ratio); provided, that, (a) in the case of any Incremental Commitments established to finance a Material Acquisition, the Consolidated Total Net Leverage Ratio may be 0.50 greater than the otherwise applicable covenant level set forth in Article VI and (b) in the case of any Incremental Term Loan Commitment established to finance a Limited Condition Transaction, the date of determination of whether the condition in this clause (vii) has been satisfied shall, at the option of the Borrower, be the LCT Test Date for such Limited Condition Transaction;
(viii) any collateral securing any such Incremental Commitments and Incremental Term Loans shall also secure all other Obligations on a pari passu basis;
(ix) the scheduled amortization installments with respect to any Incremental Term Loans may not be more frequent than quarterly and the aggregate annual amount of scheduled amortization with respect to any Incremental Term Loans may not exceed 10% of the original principal amount of such Incremental Term Loans (it being understood that, subject to this clause (viii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loans shall be determined by the Borrower and the applicable Increasing Lenders;
(x) covenants and events of default applicable to any Incremental Term Loan commitments or Incremental Term Loan shall be identical to those applicable to the Revolving Commitments and the Revolving Loans, other than any such covenants and events of default applicable after the Maturity Date in effect on the date of incurrence of such Incremental Term Loans; and
(viixi) except for the Incremental Revolving Commitments shall be deemed part of terms referred to above and shall have otherwise subject to this Section 2.23, to the same extent the terms and conditions in all respects as the existing Revolving Commitments of any Incremental Term Loans (other than with respect to the payment of Up-Front Fees;
interest rates (viii) all other whether fixed or floating), interest margins, benchmark rate floors, upfront fees, original issue discounts and prepayment terms (including “no call” terms and conditions other restrictions thereon) and premiums) are not consistent with respect to any those of the Revolving Loans, such Incremental Commitments differences shall be reasonably satisfactory acceptable to the Administrative AgentAgent (such acceptance not to be unreasonably withheld or delayed).
(b) The Borrower shall provide at least five Business Days30 days’ 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their provide Incremental Term Loan CommitmentsLoans, 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 provide Incremental Term Loan CommitmentLoans, as applicable. Each Increasing Lender shall as soon as practicable 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 and/or Incremental Term Loans 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 provide Incremental Term Loan CommitmentLoans, and any decision by a Lender to increase its Revolving Commitment and/or its provide Incremental Term Loan Commitment Loans 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 providing of Incremental Term Loan CommitmentsLoans, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its provide Incremental Term Loan Commitment Loans may be replaced with respect to its existing Revolving Commitment and/or its any existing 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 provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or provide Incremental Term Loans, 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment; provided, that none of Parent, its Subsidiaries, or its Affiliates shall be an Additional Lender. 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 Loan Commitments Loans of the Increasing Lenders plus the Revolving Commitments and the Incremental Term Loan Commitments Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Maximum Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Incremental Term Loan Commitmentscommitments, as applicable, of such Lenders Lenders, the new outstanding LC Commitment (if applicable), 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, the LC Commitment will be increased automatically (if applicable), and Schedule 1.1(b) II shall automatically be deemed amended accordingly.
(ed) For purposes All terms of the initial Incremental Term Loan advanced hereunder and any other Incremental Term Loans that are different from the terms outstanding under the Credit Agreement immediately prior to the incurrence of such Incremental Term Loans (any such initial Incremental Term Loan and other Incremental Term Loans, the “Non-Conforming Credit Extensions”) shall be 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 any existing Incremental Term Loans shall be ratably increased after the making of any new Incremental Term Loans (other than Incremental 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, all optional prepayments of Incremental Term Loans shall be allocated ratably between the then-outstanding Incremental Term Loans and such Non-Conforming Credit Extensions. 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 pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to (i) implement the requirements in the preceding two sentences, (ii) 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, (iii) provide optional and mandatory prepayments for any Incremental Term Loans, and (iv) reflect any maturity date after the Maturity Date (including, without limitation, amendments to any provisions of this Section, the following terms shall have the meanings specified below:Credit Agreement affected by such later maturity date)).
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 150,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 Incremental Commitment, (Ax) 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 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), (Bb), (g), (h) or (i), 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 Maturity Revolving Commitment Termination Date in effect at the time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of the any previously established Incremental Term Loans (without giving effect to previous reductions in and previously made pursuant to Section 2.6amortization 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 a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 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) the Borrower and its Subsidiaries shall be in compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after 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 Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Daysten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 its provide an Incremental Term Loan Commitment 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. 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 approval 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 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the 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 is 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 requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Increase of Commitments; Additional Lenders. (a) From The Borrower shall have the right from time to time after time, upon at least five (5) Business Days’ prior written notice to the Closing Date but before the termination of this Agreement and in accordance with this SectionAdministrative Agent, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, an “Incremental CommitmentRevolving Facility”) so long as 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 following conditions are satisfiedIncremental Cap; provided that:
(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) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (Aa) no Default or Event of Default shall existhave occurred and be continuing on the date on which such Incremental Facility is to become effective; provided that in connection with a requested borrowing of any Incremental Term Loan for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is a Limited Condition Transaction, the condition of this Section 2.23(a) shall be (Bx) all no Default or Event of Default exists or would exist at the time a binding purchase agreement for such transaction is entered into by the applicable Loan Party and (y) the absence of a Specified Event of Default at the time of and after giving effect to the consummation of such Limited Condition Transaction;
(b) both before and after giving effect to the consummation of the applicable Incremental Facility and the transactions related thereto, each of the representations and warranties of each Loan Party set forth contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects (other than those to the same extent as though made on and as of that date, except to the extent such representations and warranties that are expressly qualified by a Material Adverse Effect or other materialityspecifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date (provided that if a representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition); provided that in connection with a requested borrowing of any Incremental Term Loan for the sole express purpose of financing in whole or in part the purchase price for a Limited Condition Transaction, (i) such representations and warranties shall be true and correct in all respects); providedmaterial respects (provided that if a representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, that the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition) on and as of the date of effectiveness of the definitive purchase agreement for such Limited Condition Transaction and (ii) the representations and warranties required to be correct and accurate at the time of the closing of such Limited Condition Transaction and funding of any applicable Incremental Term Loan will be limited to the extent Specified Representations and such representation other representations and warranties in the applicable acquisition agreement made by or warranty relates with respect to a specific prior date, the Person or assets subject to such representation or warranty Permitted Acquisition that are material to the interests of the Lenders shall be true and correct in all material respects (other than those representations and warranties respects, but only to the extent that are expressly qualified by the Borrower or applicable Subsidiary has the right to terminate its obligations under such acquisition agreement or not consummate such Permitted Acquisition as a Material Adverse Effect or other materiality, in which case result of a breach of such representations and warranties shall be true and correct in all respects) only as of such specific prior date and (C) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectacquisition agreement;
(ivc) any incremental Term Loans made pursuant to this Section (the “such 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 2.6, 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 Facility shall be in compliance on a pro forma basis with each minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the financial covenants set forth Administrative Agent may agree in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully fundedits discretion);
(vid) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Revolving Facility or Incremental Term Loans Facility shall be on effective only upon receipt by the same terms and conditions as the existing Term Loans; and
Administrative Agent of (viii) the additional Revolving Commitments (each such commitment, an “Incremental Revolving Commitments shall Commitment”) in a corresponding amount of such requested Incremental Revolving Facility or Incremental Term Loan Commitments, in each case, in a corresponding amount of such requested Incremental Term Facility from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 11.4 and which are approved by the Administrative Agent (each such approval not to be deemed part of unreasonably withheld or delayed) (each such institution, an “Additional Lender”) (and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to any Additional Lender providing an Incremental Revolving Commitment, with the approval of each of the Issuing Bank and the Swingline Lender) 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 obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(e) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the manager or board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Commitments shall be Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.;
(bf) The Borrower the Administrative Agent shall provide at least five Business Days’ written notice have received a Pro Forma Compliance Certificate demonstrating compliance with the financial covenants in Article VI hereof after giving effect to such 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 Agent; provided that in connection with a requested borrowing of under any Incremental Term Loan Commitment for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is a Limited Condition Transaction, the date of determination for compliance with financial covenants in Article VI on a Pro Forma Basis shall be the date on which a binding purchase agreement is entered into by the Borrower or applicable Subsidiary;
(who g) 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;
(h) any Incremental Revolving Facility shall promptly provide have terms identical to those for the Revolving Loans under this Agreement, except for upfront fees payable to the Lenders providing commitments for such Incremental Revolving Facility and, for purposes of clarity, no Incremental Revolving Facility shall be subject to any limited conditionality in connection with any Limited Condition Transaction;
(i) with respect to any Incremental Term Facility, the interest rate, interest rate margins, fees, discount, amortization, protection with respect to the final maturity date and Weighted Average Life to Maturity and the final maturity date for such Incremental Term Facility applicable to any Incremental Term Facility shall be as set forth in the definitive documentation therefore; provided that (i) any such Incremental Term Facility shall have a copy final maturity date that is coterminous with or later than the Revolving Commitment Termination Date and the Maturity Date of the Term Loan A, (ii) the Weighted Average Life to Maturity of such notice Incremental Term Facility shall not be less than the Weighted Average Life to each LenderMaturity of the Term Loan A or any other then existing Incremental Term Loan, (iii) such Incremental Term Facility shall share ratably in any mandatory prepayments of any proposal then-existing Term Loan (or otherwise provide for more favorable mandatory prepayment treatment for the other Term Loans) and shall have ratable voting rights as the Term Loan A (or otherwise provide for more favorable voting rights for the other Term Loans) and (iv) 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 establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered maturity or the remaining life to those Lenders maturity) (the “Increasing LendersAll-In Yield”) that agree ), but excluding arrangement, structuring and underwriting fees paid or payable to increase the principal amount any arranger of their Revolving Commitments and/or their such Incremental Term Loan 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 existing Aggregate Revolving Commitments, which fees Term Loan A or any then outstanding Incremental Term Loan (it being understood that (x) interest on the Aggregate Revolving Commitments, the Term Loan A and any existing Incremental Term Loan may be variable based upon increased to the amount by which any extent necessary to satisfy this requirement, (y) if Term SOFR in respect of such Lender Incremental Facility includes a floor that is willing greater than both the floor applicable to increase the principal amount of its Aggregate Revolving Commitment and/or its Commitments, the Term Loan CommitmentA or any existing Incremental Facility and 3-month Term SOFR then in effect, as applicable. Each Increasing Lender such excess amount (over the greater of the existing floor and such 3-month Term SOFR) shall as soon as practicable specify be equated to interest rate for purposes of determining the applicable interest rate under such Incremental Facility and (z) differences in a written notice the Term SOFR or Base Rate floor if required to be adjusted pursuant to the Borrower foregoing shall be added to the Term SOFR or Base Rate floor to the extent required (and not to the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Applicable Margin);
(j) no Lender (or any successor thereto) shall have any obligation, express or implied, to offer obligation to increase the aggregate principal amount of its Revolving Commitment and/or or its other obligations under this Agreement and the other Loan Documents or to provide any portion of any Incremental Term Loan CommitmentFacility, and any decision by a Lender to increase its Revolving Commitment and/or its or provide any portion of any Incremental Term Loan Commitment Facility shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing ;
(k) no Arranger nor any Lender shall be have any responsibility for arranging any such Incremental Facility without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith;
(l) except as otherwise required for an increase in or permitted by clause (a) through (k) above, all other terms of any Incremental Facility, if not consistent with the aggregate principal amount terms of the Revolving Commitments and/or the Term Loan CommitmentsA or the Revolving Loans under this Agreement, as applicablethe case may be, 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. 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 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, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(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.;
(dm) The for purposes of clarity, extensions of credit under any Incremental Term Facility shall constitute Loans hereunder and rank pari passu with all other Loans hereunder and shall be secured on a pari passu basis with the other Obligations; and
(n) Notwithstanding anything to the contrary in Section 11.2, the Administrative Agent, the Loan Parties and the existing Lenders and/or Additional Lenders providing any such Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. Upon the effectiveness of or any such Incremental CommitmentTerm Loan Commitments, without the Commitments and Pro Rata Share further consent of each Lender will be adjusted any other Person, are expressly permitted to enter into an Incremental Facility Amendment to amend the Loan Documents to the extent necessary to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicableFacility, and Schedule 1.1(b) shall automatically to implement any technical, administrative and/or mechanical changes that are necessary or advisable to be deemed amended accordinglyimplemented in connection therewith (including, without limitation, to ensure continuing pro rata allocations of Loans and Commitments and to implement ratable participations in Letters of Credit).
(e) For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 1 contract
Sources: Credit Agreement (Biote Corp.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 Aggregate Revolving Commitments and/or the aggregate provide incremental Term Loan Commitments 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 $200,000,000 100,000,000 (the principal amount of each such Incremental Commitment, the “"Incremental Commitment Amount”");
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (A) increase, no Default or Event of Default shall exist, (B) 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 (i) 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); provided, that to the extent such representation or warranty relates to (ii) representations and warranties effective as of a specific prior specified date, such representation or warranty which shall be remain 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 specified date, and (Ciii) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectchanges in facts and circumstances that are not prohibited by the terms of this Agreement);
(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 shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.62.5, 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 compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after giving effect as of the most recently ended Fiscal Quarter for which financial statements are required to any have been delivered, calculated as if all such Incremental Term Loan and/or any Loans had been made and all such Incremental Revolving Commitment Commitments had been established (assuming that it is 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 sum of the Applicable Margin then in effect for Eurodollar Term Loans or Eurodollar Revolving Loans, 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 and minus 0.50% per annum;
(yvii) except as permitted in clause (x) above, the any collateral securing any such Incremental Term Loans Commitments shall be also secure all other Obligations on the same terms and conditions as the existing Term Loansa pari passu basis; and
(viiviii) 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 deemed part of on terms (including all-in pricing and shall have maturity date) consistent with the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative AgentCommitments.
(b) The Borrower shall provide at least five Business Days’ 30 days' 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, but is not required to, specify any fees offered to those Lenders (the “"Increasing Lenders”") that agree to increase the principal amount of their Revolving Commitments and/or their Term Loan provide Incremental Commitments, which fees may be variable based upon the amount by which of any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loan Lender's Incremental Commitment, as applicable. Each Increasing Lender shall as soon as practicable 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 to provide any additional Term Loan CommitmentLoan, and any decision by a Lender to increase its Revolving Commitment and/or its provide any additional 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 to provide any additional Term Loan CommitmentsLoan, as applicable, pursuant to this Section, and then only with respect to the increased Commitment(s) of such Lender. No Lender which that declines to increase the principal amount of its Revolving Commitment and/or its Term Loan 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 '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 (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 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 increase in the Revolving Commitments and the Term Loan aggregate Incremental Commitments of the Increasing Lenders plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders provided after the Closing Date shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Incremental 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(e) If any Incremental Term Loans are to have terms that are different from the Term Loans or 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 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 2.11 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 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 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 Revolving Commitments outstanding immediately prior to any such incurrence). For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Tivity Health, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 150,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 Incremental Commitment, (Ax) 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 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), (Bb), (g), (h) or (i), 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 term loans made pursuant to this Section (the “Incremental Term Loans” and, the commitments with respect thereto, the “Incremental Term Loan Commitments”) (i) that are made pursuant to an increase of the initial Term Loan Commitments shall be considered initial Term Loans for all purposes hereunder, have identical terms (including pricing, amortization schedule and maturity date; provided that upfront fees for any such Incremental Term Loans will be permitted and shall be determined by the Borrower and the Lenders providing such Incremental Term Loans) to the initial Term Loans and be treated as the same Class as the initial US-DOCS\51545218.9 Term Loans and (ii) that are made pursuant to a new tranche of 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 and shall have a Weighted Average Life to Maturity no shorter than that of the any then-outstanding Term Loans (without giving effect to previous reductions in and previously made pursuant to Section 2.6amortization payments on such Term Loans), and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 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) the Borrower and its Subsidiaries shall be in compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after 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 Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Daysten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 Incremental 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 provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving US-DOCS\51545218.9 Commitment, its existing Term Loan Commitment and/or its existing 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 approval 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 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any new tranche of Incremental Term Loan Commitments is to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the US-DOCS\51545218.9 effectiveness of the establishment of such new tranche of 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 requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 increaseeach, an “Incremental CommitmentRevolving Facility”) and/or add one or more term loan facilities or to increase the aggregate amount of any existing Class of Term Loans hereunder (each, an “Incremental Term Facility” and, together with the Incremental Revolving Facility, the “Incremental Facilities”) so long as the following conditions are satisfied:
: (i) the aggregate principal amount of all such Incremental Commitments Facilities made pursuant to this Section shall not exceed the Incremental Cap; provided that the aggregate commitments under the Incremental Revolving Facility shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
20,000,000; (ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (A) incurrence, no Default or Event of Default shall exist, (B) exist and all representations and warranties of each Loan DB1/ 110470318.9 82 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); provided, that, solely with respect to an Incremental Term Facility the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Limited Condition Transaction, the condition shall be that to (x) no Event of Default shall exist on the extent LCT Test Date and no Specified Event of Default shall exist on the date of consummation of such representation or warranty relates to a specific prior date, such representation or warranty Limited Condition Transaction and (y) the Specified Representations 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 on the date of consummation of such specific prior date and Limited Condition Transaction; (Ciii) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(ivx) any incremental Incremental Term Loans Facility made pursuant to this Section (the “Incremental and which is a separate Class of Term Loans”) 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 2.62.5, and (y) any incremental Incremental Term Facility made pursuant to this Section in the form of an increase to an existing Class of Term Loans shall have the same maturity date as such existing tranche of Term Loans, and (z) any Incremental Revolving Commitments Facility provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
; (viv) the Borrower and its Restricted Subsidiaries shall be in compliance compliance, on a pro forma basis Pro Forma Basis, with each of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded);
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum as of the Applicable Margin then in effect most recently ended (1) Fiscal Quarter for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans which financial statements are required to have been delivered or (the “Existing Yield”)2) calendar month, then the Applicable Margin of the existing Term Loans shall increase by an amount equal solely to the difference between extent that the Initial Yield financial statements for such month (and any prior month or months the Existing Yield and (y) except as permitted results for which are not included in clause (x1)) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) 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 five Business Days’ written notice been delivered 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the 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 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. 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 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, any 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, executed by in each case, calculated (without “netting” the Borrower, by each Additional Lender proceeds thereof in such calculation) as if all such Incremental Term Facilities had been made and by each Increasing Lender, setting forth all such Incremental Revolving Facilities had been established (and fully funded) as of the new Revolving Commitments and/or new Term Loan Commitmentsfirst day (for purposes of Section 6.3) and as of the last day (for purposes of Section 6.1), 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 Borrower relevant period for testing compliance, provided, that, solely with respect to an Incremental Term Facility the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Limited Condition Transaction, the condition set forth in this clause (iv) shall be true and correct on the LCT Test Date; (v) if the interest rate margin applicable to any such Incremental Commitment and Term Facility incurred within 18 months of the Closing Date exceeds by more than 0.50% per annum the Applicable Margin then in effect for EurodollarSOFR Term Loans made pursuant to Section 2.5, then the Applicable Margin of the existing Term Loans, shall be increased such opinions of counsel for that the Borrower with respect Applicable Margin on the existing Term Loan is no more than 0.50% per annum lower than the interest rate margin on such Incremental Facility, provided, that in determining the interest rate margin applicable to such Incremental Commitment Term Facility 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 and upfront fees paid to the lenders thereunder shall be included (with original issue discount or upfront fees being equated to interest based on assumed four-year life to maturity), (y) if such Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the existing Term Loan, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the DB1/ 110470318.9 83 interest rate margin under the existing Term Loan shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loan would cause an increase in the Applicable Margin then in effect for EurodollarSOFR Term Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the existing Term Loan 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 the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance is reasonably acceptable to the Administrative AgentAgent and the Borrower; (vi) the Incremental Facilities (A) shall rank pari passu in right of payment and/or with respect to security with the Obligations, certifying that each (B) may not be secured by any assets other than Collateral, (C) may not be guaranteed by any Person who is not a Loan Party and (D) may participate on a (x) pro rata basis (but not greater than a pro rata basis) or less than pro rata basis in any voluntary repayment or prepayment in respect of the conditions Term Loans and (y) pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in subsection any mandatory repayment or prepayment in respect of the Term Loans; and (avii) of (x) any Incremental Term Facility made pursuant to this Section has been satisfied;
and which is a separate tranche of Term Loans shall be on terms and conditions that are, taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than, those applicable to the existing Term Loans, as determined in good faith by a Responsible Officer of the Borrower (ivexcept (A) as otherwise permitted by this Section 2.23, (B) for covenants applicable only to periods after the Maturity Date of the Term Loans at the time of incurrence and (C) to the extent such terms and conditions are offered to be conformed or added to this Agreement for the benefit of the existing Lenders pursuant to an amendment) and to the extent applicable and if reasonably requested by the Administrative Agent, such Indebtedness shall be subject to an Acceptable Intercreditor Agreement, (y) any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by Facility made pursuant to this Section in the Borrower in accordance with Section 2.11(b); and
form of an increase to an existing Class of Term Loans shall be on the same terms and conditions (subject to clause (v) any above, other certificates or documents that the Administrative Agent shall reasonably request, in form than with respect to original issue discount and substance reasonably satisfactory to the Administrative Agent.
(dupfront fees) The Incremental as such existing Class of Term Loans (except as otherwise permitted by this Section 2.23), and (z) any Incremental Revolving Commitments Facility provided pursuant to this Section shall have be on the same terms and conditions (other than with respect to upfront fees) as the Term Revolving Loans and the Revolving Commitments, (except as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) shall automatically be deemed amended accordingly.
(e) For purposes of otherwise permitted by this Section, the following terms shall have the meanings specified below:Section 2.23
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement and Borrowers may increase in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders installments, upon the request of Borrower Agent, the then effective amount of the Aggregate Revolving Credit Commitment identifying the applicable Revolving Credit Commitment to be increased; provided that: (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:
(ii)(x) the aggregate principal amount of all such Incremental Commitments made the increases in the Aggregate Revolving Credit Commitment pursuant to this Section 2.16, shall not exceed $200,000,000 75,000,000 and (y) each increase in the principal Aggregate Revolving Credit Commitment pursuant to this Section 2.16 shall be in an amount equal to $5,000,000 or a whole multiple of each such Incremental Commitment, the “Incremental Commitment Amount”);
$1,000,000 in excess thereof; (ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) the Borrower 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 such increases and at the time of any such proposed increase;
; (iii) at the time of and immediately after giving effect to any such proposed increase (A) no Default or Event of Default shall exist, (B) have occurred and be continuing or 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 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); provided) on and as of the date of such increase or, that to the extent such representation or warranty relates representations and warranties expressly relate to a specific prior an earlier date, such representation or warranty shall be true and correct in all material respects (other than those representations on 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 and (C) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
earlier date; (iv) any incremental Term Loans made pursuant to the Incremental Revolving Credit Commitments provided under this Section 2.16 (the “Incremental Term LoansRevolving Credit Commitments”) shall have a maturity an expiration 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 2.6, 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 Borrowers shall be in compliance on a pro forma basis compliance with each the Financial Covenant as of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any 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 Commitment Credit Commitments had been established (assuming that it is and fully funded);
) as of the first day of the relevant period for testing compliance; and (vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to any such the Incremental Revolving Credit Commitments shall, except with respect to All-In Yield (which shall be reasonably subject to clause (d) below), be identical to those applicable to the Revolving Credit Commitments or otherwise satisfactory to the Administrative Agent.
(b) The Borrower Agent shall provide at least five Business Days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to invite each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the 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 applicable Revolving Commitment and/or its Term Loan Credit Commitment, as applicable. Each Increasing Lender shall as soon as practicable specify on a pro rata basis, in a written notice connection with the proposed Incremental Revolving Credit Commitments at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to the Borrower and the Administrative Agent the amount of increase their applicable Revolving Credit Commitments in connection with such proposed Incremental Commitment that it Revolving Credit Commitments, then Agent or Borrowers may invite any prospective lender who is willing an Eligible Assignee to providebecome a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 2.16. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its applicable Revolving Commitment and/or its Term Loan Credit 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 the Lenders agreeing to increase their applicable Revolving Credit Commitments (the “Increasing Lender Lenders”) shall be required for an increase in the aggregate principal amount of the applicable Revolving Credit Commitments and/or the Term Loan Commitments, as applicable, pursuant to this SectionSection 2.16. No Lender which declines to increase the principal amount of its applicable Revolving Commitment and/or its Term Loan Commitment Credit Commitments may be replaced with in respect to its existing applicable Revolving Commitment and/or its Term LoansCredit Commitments, as applicable, 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 (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 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 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 SectionSection 2.16, any increase requested by the Borrower Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
documents (the date of such effectiveness, the “Increase Date”): (i) an originally executed copy of an any instrument of joinderjoinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the 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 a notice to the Increasing Lenders and Additional Lenders, in form and substance reasonably acceptable to Agent, signed by a Responsible Officer of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
Agent; (iii) a certificate of the Borrower Agent signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied;
; and (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 2.11(b); and
(v) any other certificates certificates, opinions or documents that the Administrative Agent shall reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Incremental Term Loans and Incremental Revolving Commitments shall have Anything to the same terms as the Term Loans and the Revolving Commitments, as applicable. Upon the effectiveness of any such Incremental Commitmentcontrary contained herein notwithstanding, the Commitments and Pro Rata Share of each Lender will All-In Yield that is to be adjusted applicable to give effect the Loans to be made pursuant to the Incremental Revolving Credit Commitments and/or 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 Term LoansRevolving Credit Commitments is higher than the All-In Yield applicable to the Loans hereunder immediately prior to the Increase Date (the amount by which the All-In Yield is higher, as applicablethe “Excess”), then the interest margin applicable to the Loans immediately prior to the Increase Date shall be increased by the amount of the Excess, subject to the occurrence of and Schedule 1.1(b) shall automatically be deemed amended accordinglyeffective upon the Increase Date and without the necessity of any action by any party hereto.
(e) For purposes Each of the Lenders having a Revolving 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 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 participation interests in Swingline Loans and undrawn Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to 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) Unless otherwise specifically provided herein, all references in this SectionAgreement and any other Loan Document to Loans shall be deemed, unless the following terms shall have context otherwise requires, to include Loans made pursuant to the meanings specified below:Incremental Revolving Credit Commitments pursuant to this Section 2.16.
Appears in 1 contract
Sources: Credit Agreement (Navan, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more new tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 75,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 Incremental Commitment, (Ax) 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 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), (Bb), (g), (h) or (i), 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 Maturity Revolving Commitment Termination Date in effect at the time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of the any previously established Incremental Term Loans (without giving effect to previous reductions in and previously made pursuant to Section 2.6amortization 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 a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 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) the Borrower and its Subsidiaries shall be in compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after 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 Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Daysten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 its provide an Incremental Term Loan Commitment 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. 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 approval 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 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the 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 is 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 requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 $200,000,000 75,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 (A) increase, no Default or Event of Default shall exist, (B) 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 made as of a Material Adverse Effect or other materialityspecific date, in which case such representations and warranties shall be true and correct in all respects); 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 and (C) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effectdate);
(iviii) 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 shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.6, 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;; and
(viv) the Borrower and its Subsidiaries Loan Parties shall be in compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded);
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum as of the Applicable Margin then in effect most recently ended Fiscal Quarter for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”)which financial statements are required to have been delivered, then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield and (y) except calculated as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in if all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to had been established (and fully funded) as of the Administrative Agent.first day of the relevant period for testing compliance..
(b) The Borrower shall provide at least five Business Days30 days’ 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the 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 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. 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 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, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) shall automatically be deemed amended accordingly.
(e) For purposes of this Section, the following terms shall have the meanings specified below:an
Appears in 1 contract
Sources: First Lien Credit Agreement (Magnum Hunter Resources Corp)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”)35,000,000;
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 proposed increase Incremental Commitment, (Ax) no Default or 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 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 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 and in effect at the time such Incremental Term Loans are incurred, shall have a Weighted Average Life to Maturity no shorter than that of the any then-outstanding Term Loans (without giving effect to previous reductions in and previously made pursuant amortization payments on such Term Loans) and shall otherwise have terms (other than pricing and any representations, warranties, covenants and other provisions applicable only to Section 2.6periods after the latest Maturity Date hereunder at such time) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are reasonably satisfactory to the Administrative Agent (it being understood and agreed that to the extent that any more restrictive terms are added for the benefit of any Incremental Term Loan Commitments and related Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such terms are also added for the benefit of the existing Loans and Commitments (to the extent applicable)), and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after 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 Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Daysten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 Incremental 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 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 LoansLoans (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 approval 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 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the 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 finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section that 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);
(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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the 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 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 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 Increase” and the commitments in respect thereof, an “Incremental LEGAL02/42400466v16 Commitment” and the loans made pursuant thereto, “Incremental Loans”) ), so long as the following conditions are satisfied:
(i) the aggregate principal amount of each Incremental Commitment Increase shall not be less than $2,500,000 and 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”)50,000,000;
(ii) all Incremental Commitments shall (Aexcept for the amounts thereof) have terms that are identical to the conditions precedent Revolving Commitments in Section 3.2 shall be satisfied and effect immediately prior to the establishment of such Incremental Commitments;
(Biii) 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;
(iiiiv) at the time of and immediately after giving effect to any such proposed increase increase, (A) no Default or Event of Default shall exist, (B) 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 except to the extent any such representations and warranties that (x) are expressly limited to an earlier date, in which case, on and as of the date of such increase and immediately after giving effect to any such proposed increase, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date or (y) are already qualified by a materiality, Material Adverse Effect or other materialitya similar qualification, in which case case, such representations and warranties shall be true and correct in all respects); 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 and (C) since December 31, 20132021, there shall have been no change which has 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 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 2.6, 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 compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after giving effect as of the most recently ended Fiscal Quarter for which financial statements are required to any have been delivered, calculated as if all such Incremental Term Loan and/or any such Incremental Revolving Commitment Commitments had been established (assuming that it is and fully funded);) as of the first day of the relevant period for testing compliance; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Days30 days’ 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, but is not required to, specify any fees offered to those Lenders that agree to provide Incremental Commitments (the “Increasing Lenders”) that agree to increase the 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 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 provide an Incremental Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loan provide an Incremental Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for to establish an increase in the aggregate principal amount of the Revolving Commitments and/or the Term Loan Commitments, as applicable, pursuant to this SectionIncremental Commitment. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan provide an Incremental Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicableCommitment, 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 such Incremental 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 ; provided that Truist Bank shall LEGAL02/42400466v16 always be permitted (but not obligated) to increase its Commitments 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 an amount of the Incremental Commitment Amountno less than its Pro Rata Share.
(c) Subject to subsections paragraphs (a) and (b) of this Section, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Incremental 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection paragraph (a) of this Section has 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 LoansCommitments, issued by the Borrower in accordance with Section 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicableCommitments, and Schedule 1.1(b) II shall automatically be deemed amended accordingly.
(ed) For purposes of If the Borrower incurs Incremental Commitments under this Section, the following terms shall have Borrower shall, after such time, repay and incur Revolving Loans ratably as between the meanings specified below:Incremental 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 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 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 Credit Extensions pursuant to the Incremental Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
Appears in 1 contract
Sources: Credit Agreement (Skyward Specialty Insurance Group, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date but before the termination of this Agreement 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 the aggregate (ii) establish one or more tranches of Incremental Term Loan Commitments hereunder (each such increaseincrease 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 $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”)30,000,000;
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) 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 proposed increase Incremental Commitment, (Ax) no Default or 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 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 a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); 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 the date of the establishment of such Incremental Commitment (or, if such representation or warranty relates to an earlier date, as of such specific prior date 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 (CII) since December 31the representations and warranties made by or on behalf of the applicable target in the purchase, 2013acquisition or similar agreement governing such Acquisition or other Investment as are material to the interests of the Lenders, there shall have been no change which but only to the extent that the Borrower (or the Borrower’s applicable Affiliates or Subsidiaries) has had the right (determined without regard to any notice requirement) not to consummate or could reasonably 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 expected accurate or to have a Material Adverse Effectsatisfy 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 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 and in effect at the time such Incremental Term Loans are incurred, shall have a Weighted Average Life to Maturity no shorter than that of the any then-outstanding Term Loans (without giving effect to previous reductions in and previously made pursuant amortization payments on such Term Loans) and shall otherwise have terms (other than pricing and any representations, warranties, covenants and other provisions applicable only to Section 2.6periods after the latest Maturity Date hereunder at such time) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are reasonably satisfactory to the Administrative Agent (it being understood and agreed that to the extent that any more restrictive terms are added for the benefit of any Incremental Term Loan Commitments and related Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such terms are also added for the benefit of the existing Loans and Commitments (to the extent applicable)), and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a identical terms (including pricing and termination date no earlier than 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 Commitment Termination DateCommitments 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 compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI after 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 Loan and/or any such Loans or Incremental Revolving Commitment (assuming that it is fully fundedCommitments);; and
(vi) 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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) all other terms and conditions with respect to collateral securing any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agentalso secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least five Business Daysten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their 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 its the principal amount of the Incremental Term Loan Commitment, as applicable. Each Increasing Commitment such Lender shall as soon as practicable 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, 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 its provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its 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 Incremental 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 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 LoansLoans (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 approval 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 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 “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 then-existing Lenders and the Additional LendersLenders (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 in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any 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 joinderjoinder (each, an “Incremental Commitment Joinder”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Incremental Revolving Commitments and/or new 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the 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 finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section that 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);
(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 2.11(b)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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) I shall automatically be deemed amended accordingly.
(ed) For purposes If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the 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 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 requirements in the preceding sentence or the foregoing clause (a)(iv) of this Section, 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 following terms Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall have supersede any provisions in Section 2.21 or 10.2 to the meanings specified below:contrary.
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Increase of Commitments; Additional Lenders. (a) a. From time to time after the Closing Date but before the termination of this Agreement 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:satisfied as of the funding date of such Incremental Commitment (the “Incremental Effective Date”):
(i) 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”)12,500,000;
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) . 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 (A) increase, no Default or Event of Default shall exist, (B) 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); provided, that to the extent such representation or warranty relates to a specific prior dateand, 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 and (C) since December 31, 20132018, there shall have been no change which has 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 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 (and as defined in) the Existing Credit Agreement and continued on the Closing Date as set forth in Section 2.6, 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 Date2.1;
(v) v. the Borrower and its Subsidiaries Holdings shall be in compliance on a pro forma basis compliance with each of the financial covenants set forth in Article VI VI, after giving effect to any such proposed increase, as of the 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 Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded)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 the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-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 difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the minus 0.50% per annum;
vii. any collateral securing any such Incremental Term Loans Commitments shall be also secure all other Obligations on the same terms and conditions as the existing Term Loansa pari passu basis; and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the payment of Up-Front Fees;
(viii) . 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 five Business Days’ 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, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the 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 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. 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) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental 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 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, any 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, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the 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 Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has 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 2.11(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) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. 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 and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) shall automatically be deemed amended accordingly.
(e) For purposes of this Section, the following terms shall have the meanings specified below:
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Sources: Term Loan Agreement (Root, Inc.)