Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.12) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions: (a) no Default or Event of Default shall have occurred and be continuing; (b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000; (c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.12, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three (3) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021; (d) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment Amount. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amount, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.12, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval; (e) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.12) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.12) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below; (f) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement; (g) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances; (h) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders); (i) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase: (1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and (2) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and (j) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion; (k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and (l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 2 contracts
Samples: Credit Agreement (Accolade, Inc.), Credit Agreement (Accolade, Inc.)
Optional Increase in Revolving Credit. Borrower The Borrowers may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Maximum Optional Increase AmountAmount (as reduced by the amount of any Additional Term Loans and Term Loan Increases made in accordance with Section 4.10), subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower The Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”, and each such increase a “Revolving Credit Increase”); provided, however, that in the event Borrower if Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower the Borrowers may make no more than three five (35) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021Increases;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in by an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request ask each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment Commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment Commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of after the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders Lender(s) shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amountrequested increase, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable RequestRequest for Revolving Credit Increase; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower the Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees feescosts and expenses attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding EurocurrencyEurodollar-based basedTerm SOFR Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower the Borrowers had prepaid such Advances;
(hf) if requested, Borrower the Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) 2.13), and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) no existing Revolving Credit Lender or other Lender hereunder shall be under any obligation to fund the increase of the Revolving Credit Aggregate Commitment and any such decision whether to do so shall be in such Lender’s sole and absolute discretion;
(h) prior to the date the increased commitment becomes available, the Borrower Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis basis, in each case on such date and for the most recent determination period for which the Borrower has Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower the Borrowers Representative (A) certifying and attaching the resolutions adopted by Borrower the Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(i) any Revolving Credit Increase made pursuant to this Section 2.13, and any Advances made in respect thereof, shall be subject to the same terms as are applicable to the existing Revolving Credit Aggregate Commitment and any Advances made in respect thereof;
(j) such amendments, amendments to reflect any changes to the Loan Documents in order to give effect to any such Revolving Credit Increase and such acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower the Borrowers as required by the Agent, in its reasonable discretion;; and
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, Lender shall have completed its flood insurance due diligence and flood insurance compliance as required by applicable law or such Lender’s internal requirements as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Optional Increase in Revolving Credit. Borrower Maximum Amount. Provided that no Default or Event of Default has occurred and is continuing, and provided that the Company has not previously elected to terminate the Revolving Credit Maximum Amount under Section 2.15 hereof, the Company may request that the Revolving Credit Aggregate Commitment Maximum Amount be increased in an aggregate amount (for all such requests Requests under this Section 2.122.17) not to exceed the Revolving Credit Optional Increase AmountIncrease, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower Company shall have delivered to the Agent not less than thirty (30) days prior to the Revolving Credit Maturity Date then in effect a written request for such increase, specifying the amount of the Revolving Credit Optional Increase thereby requested increase (each such request, a “"Request for Revolving Credit Increase”"); provided, however, however that in the event Borrower the Company has previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.17, Borrower the Company may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied hereunder (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower the Company may make no more than three (3) two Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021in any calendar year;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment Amount. If any one lender or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amount, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person lenders meeting the requirements of Section 13.8 13.8(c) hereof and acceptable to the Company and the Agent (including, for the purposes of this Section 2.122.17, any existing Revolving Credit Lender Bank which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “"New Revolving Credit Lender(sBank(s)”), to increase their respective applicable Revolving Credit Commitment Amount (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(e") the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Bank Addendum for a minimum amount (including for the purposes of this Section 2.17, the existing commitment of any existing Bank) for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender Bank of Ten Million Dollars ($5,000,000 10,000,000) and an aggregate amount for all such New Revolving Credit Lenders Banks of that portion of the Revolving Credit Optional Increase AmountIncrease, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment Maximum Amount (pursuant to this Section 2.12) 2.17), covered by the applicable Request; , provided, however, however that each New Revolving Credit Lender Bank shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.17) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders Banks based upon the new Percentages as determined below;
(fc) no New Revolving Credit Lender shall receive compensation the Company (whether in the form of a fee, original issue discount or interest rate pricingi) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(g) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit LendersBanks, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicativeFee and the Letter of Credit Fees) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had Company has prepaid such AdvancesAdvances and (ii) shall have paid to each New Bank a special letter of credit fee on the Letters of Credit outstanding on the effective date of such increase, calculated on the basis of the Letter of Credit Fees which would be applicable to such Letters of Credit if issued on the date of such increase, for the period from the effective date of such increase to the expiration date of such Letters of Credit;
(hd) if requested, Borrower the Company and each of the Permitted Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders Banks in the face amount of each such New Revolving Credit Lender’s Bank's Percentage of the Revolving Credit Aggregate Commitment Maximum Amount (after giving effect to this Section 2.122.17) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders Banks in the face amount of each such Revolving Credit Lender’s Revolving Credit Bank's Percentage of the Revolving Credit Aggregate Commitment Maximum Amount (after giving effect to this Section 2.122.17), each of such Revolving Credit Notes to be substantially in the form of Exhibit C-1 or C-2 to the Credit Agreement, as applicable, and dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit LendersBank, including the New Revolving Credit LendersBanks);
(ie) prior except to the date the increased commitment becomes available, the Borrower extent such representations and warranties (other than Section 6.15 hereof which shall have delivered be deemed to the Agent, in each case dated be remade as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date for purposes of this clause (e), notwithstanding the limitation contained therein) are not, by their terms, continuing representations and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and
(2) warranties, but speak only as of a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increasespecific date, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained made by Company, the Permitted Borrower, each Guarantor or any other party to any of the Loan Documents (excluding the Agent and Banks) in this Agreement and or any of the other Loan Documents Documents, and the representations and warranties of any of the foregoing which are contained in any certificate, document or financial or other statement furnished at any time hereunder or thereunder or in connection herewith or therewith shall have been true and correct in all material respects when made and shall be true and correct in all material respects on and as of the effective date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, increase; and (2ii) no Default or Event of Default shall have occurred and be continuingcontinuing as of such date; and
(jf) such other amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower Company as required by Agent or the AgentMajority Banks, in its their reasonable discretion;
(k) prior to . Promptly on or after the date on which all of the conditions to such Request for Increase set forth above have been satisfied, Agent shall notify the Company and each of the Banks of the amount of the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance Maximum Amount as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under increased pursuant this Section 2.12 if 2.17 and the date on which such increase would result in has become effective and shall prepare and distribute to Company and each of the Banks (including the New Banks) a violation revised Exhibit D to the Credit Agreement setting forth the applicable new Percentages of any Subordinated Debt Documents or Subordination Agreementsthe Banks (including the New Bank(s), unless the Agent has received satisfactory evidence prior to giving effect to taking into account such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agentand assignments (if any).
Appears in 1 contract
Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three two (32) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31June 30, 2021;2015.
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.12, 2.13 any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 3,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances;
(hf) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(jh) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion;
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Optional Increase in Revolving Credit. Borrower Borrowers may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower Borrowers may make no more than three two (32) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021within twelve (12) months prior to the Revolving Credit Maturity Date;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 (or such lesser amount as agreed to by Agent) and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower Borrowers had prepaid such Advances;
(hf) if requested, Borrower Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) prior to the date the increased commitment becomes available, the Borrower Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower Borrowers (A) certifying and attaching the resolutions adopted by Borrower Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(jh) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower Borrowers as required by the Agent, in its reasonable discretion;
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Credit Agreement (Bazaarvoice Inc)
Optional Increase in Revolving Credit. Borrower The Borrowers may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Maximum Optional Increase AmountAmount (as reduced by the amount of any Additional Term Loans and Term Loan Increases made in accordance with Section 4.10), subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower The Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”, and each such increase a “Revolving Credit Increase”); provided, however, that in the event Borrower if Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower the Borrowers may make no more than three five (35) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021Increases;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in by an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request ask each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment Commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment Commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of after the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders Lender(s) shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amountrequested increase, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable RequestRequest for Revolving Credit Increase; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower the Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees costs and expenses attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Term SOFR Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower the Borrowers had prepaid such Advances;
(hf) if requested, Borrower the Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) 2.13), and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) no existing Revolving Credit Lender or other Lender hereunder shall be under any obligation to fund the increase of the Revolving Credit Aggregate Commitment and any such decision whether to do so shall be in such Lender’s sole and absolute discretion;
(h) prior to the date the increased commitment becomes available, the Borrower Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis basis, in each case on such date and for the most recent determination period for which the Borrower has Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower the Borrowers Representative (A) certifying and attaching the resolutions adopted by Borrower the Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(i) any Revolving Credit Increase made pursuant to this Section 2.13, and any Advances made in respect thereof, shall be subject to the same terms as are applicable to the existing Revolving Credit Aggregate Commitment and any Advances made in respect thereof;
(j) such amendments, amendments to reflect any changes to the Loan Documents in order to give effect to any such Revolving Credit Increase and such acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower the Borrowers as required by the Agent, in its reasonable discretion;; and
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, Lender shall have completed its flood insurance due diligence and flood insurance compliance as required by applicable law or such Lender’s internal requirements as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed exceed, when added to the Revolving Credit amount of any Additional Term Loans and Term Loan Increases made in accordance with Section 4.10, the Maximum Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three (3) Requests for Revolving Credit Increase and no Request for Increase may be made on or after December 31, 2021the date that is twelve (12) months prior to the Revolving Credit Maturity Date without the consent of the Agent;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.12, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(e) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.12) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.12) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(f) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(g) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances;
(h) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(i) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and
(2) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(j) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion;
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.this
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Optional Increase in Revolving Credit. Borrower The Borrowers may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Maximum Optional Increase AmountAmount (as reduced by the amount of any Additional Term Loans and Term Loan Increases made in accordance with Section 4.10), subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower The Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”, and each such increase a “Revolving Credit Increase”); provided, however, that in the event Borrower if Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower the Borrowers may make no more than three five (35) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021Increases;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in by an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request ask each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment Commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment Commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of after the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders Lender(s) shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amountrequested increase, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable RequestRequest for Revolving Credit Increase; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower the Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding EurocurrencyEurodollar-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower the Borrowers had prepaid such Advances;
(hf) if requested, Borrower the Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) 2.13), and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) no existing Revolving Credit Lender or other Lender hereunder shall be under any obligation to fund the increase of the Revolving Credit Aggregate Commitment and any such decision whether to do so shall be in such Lender’s sole and absolute discretion;
(h) prior to the date the increased commitment becomes available, the Borrower Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis basis, in each case on such date and for the most recent determination period for which the Borrower has Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower the Borrowers Representative (A) certifying and attaching the resolutions adopted by Borrower the Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(i) any Revolving Credit Increase made pursuant to this Section 2.13, and any Advances made in respect thereof, shall be subject to the same terms as are applicable to the existing Revolving Credit Aggregate Commitment and any Advances made in respect thereof;
(j) such amendments, amendments to reflect any changes to the Loan Documents in order to give effect to any such Revolving Credit Increase and such acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower the Borrowers as required by the Agent, in its reasonable discretion;; and
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, Lender shall have completed its flood insurance due diligence and flood insurance compliance as required by applicable law or such Lender’s internal requirements as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Optional Increase in Revolving Credit. Borrower Maximum Amount. Provided that no Default or Event of Default has occurred and is continuing, and provided that the Company has not previously elected to terminate the Revolving Credit Maximum Amount under Section 2.15 hereof, the Company may request that the Revolving Credit Aggregate Commitment Maximum Amount be increased in an aggregate amount (for all such requests Requests under this Section 2.122.18) not to exceed the Revolving Credit Optional Increase AmountIncrease, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:: 63
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower Company shall have delivered to the Agent not less than thirty (30) days prior to the Revolving Credit Maturity Date then in effect a written request for such increase, specifying the amount of the Revolving Credit Optional Increase thereby requested increase (each such request, a “"Request for Revolving Credit Increase”"); provided, however, however that in the event Borrower the Company has previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.18, Borrower the Company may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied hereunder (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower the Company may make no more than three (3) two Requests for Revolving Credit Increase and no Request for Increase may be made after December 31, 2021in any calendar year;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment Amount. If any one lender or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amount, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person lenders meeting the requirements of Section 13.8 13.8(c) hereof and acceptable to the Company, Syndication Agent and the Agent (including, for the purposes of this Section 2.122.18, any existing Revolving Credit Lender Bank which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “"New Revolving Credit Lender(sBank(s)”), to increase their respective applicable Revolving Credit Commitment Amount (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(e") the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Bank Addendum for a minimum amount (including for the purposes of this Section 2.18, the existing commitment of any existing Bank) for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender Bank of Ten Million Dollars ($5,000,000 10,000,000) and an aggregate amount for all such New Revolving Credit Lenders Banks of that portion of the Revolving Credit Optional Increase AmountIncrease, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment Maximum Amount (pursuant to this Section 2.12) 2.18), covered by the applicable Request; , provided, however, however that each New Revolving Credit Lender Bank shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.18) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders Banks based upon the new Percentages as determined below;
(fc) no New Revolving Credit Lender shall receive compensation the Company (whether in the form of a fee, original issue discount or interest rate pricingi) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(g) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit LendersBanks, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicativeFee and the Letter of Credit Fees) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had Company has prepaid such AdvancesAdvances and (ii) shall have paid to each New Bank a special letter of credit fee on the Letters of Credit outstanding on the effective date of such increase, calculated on the basis of the Letter of Credit Fees which would be applicable to such Letters of Credit if issued on the date of such increase, for the period from the effective date of such increase to the expiration date of such Letters of Credit;
(hd) if requested, Borrower the Company and each of the Permitted Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders Banks in the face amount of each such New Revolving Credit Lender’s Bank's Percentage of the Revolving Credit Aggregate Commitment Maximum Amount (after giving effect to this Section 2.122.18) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders Banks in the face amount of each such Revolving Credit Lender’s Revolving Credit Bank's Percentage of the Revolving Credit Aggregate Commitment Maximum Amount (after giving effect to this Section 2.122.18), each of such Revolving Credit Notes to be substantially in the form of Exhibit C-1 or C-2 to the Credit Agreement, as applicable, and dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit LendersBank, including the New Revolving Credit LendersBanks);
(ie) prior except to the date the increased commitment becomes available, the Borrower extent such representations and warranties (other than Section 6.15 hereof which shall have delivered be deemed to the Agent, in each case dated be remade as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date for purposes of this clause (e), notwithstanding the limitation contained therein) are not, by their terms, continuing representations and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and
(2) warranties, but speak only as of a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increasespecific date, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained made by Company, the Permitted Borrower, each Guarantor or any other party to any of the Loan Documents (excluding the Agent and Banks) in this Agreement and or any of the other Loan Documents Documents, and the representations and warranties of any of the foregoing which are contained in any certificate, document or financial or other statement furnished at any time hereunder or thereunder or in connection herewith or therewith shall have been true and correct in all material respects when made and shall be true and correct in all material respects on and as of the effective date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, increase; and (2ii) no Default or Event of Default shall have occurred and be continuingcontinuing as of such date; and
(jf) such other amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower Company as required by Agent or the AgentMajority Banks, in its their reasonable discretion;
(k) prior to . Promptly on or after the date on which all of the conditions to such Request for Increase set forth above have been satisfied, Agent shall notify the Company and each of the Banks of the amount of the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance Maximum Amount as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under increased pursuant this Section 2.12 if 2.18 and the date on which such increase would result in has become effective and shall prepare and distribute to Company and each of the Banks (including the New Banks) a violation revised Exhibit D to the Credit Agreement setting forth the applicable new Percentages of any Subordinated Debt Documents or Subordination Agreementsthe Banks (including the New Bank(s), unless the Agent has received satisfactory evidence prior to giving effect to taking into account such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agentand assignments (if any).
Appears in 1 contract
Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.12) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.12, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three (3) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31October 1, 20212015;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.12, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.12) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.12) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(g) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances;
(h) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(i) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and
(2) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(j) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion;
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Optional Increase in Revolving Credit. Borrower Borrowers may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower Borrowers may make no more than three two (32) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31September 30, 20212015;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 10,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower Borrowers had prepaid such Advances;
(hf) if requested, Borrower Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) prior to the date the increased commitment becomes available, the Borrower Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma form basis on such date and for the most recent determination period for which the Borrower has Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower Borrowers (A) certifying and attaching the resolutions adopted by Borrower Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(jh) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower Borrowers as required by the Agent, in its reasonable discretion;.”
3. Each of Section 7.9(a) and Section 7.9(e) of the Credit Agreement is hereby deleted and the following is inserted in each place: “Intentionally omitted.”
4. Section 7.9(c) of the Credit Agreement is hereby deleted and the following is inserted in its place: “Commencing September 30, 2011 maintain a Tangible Net Worth of Sterling and its Consolidated Subsidiaries of at least $118,000,000 plus 100% of the positive Net Income of the fiscal quarter ending September 30, 2011 and each subsequent fiscal quarter, in each case without reduction for losses.”
5. Schedule 1.1 to the Credit Agreement is hereby deleted and the Schedule 1.1 attached hereto as Annex A is hereby inserted in the Schedules to the Credit Agreement in its place.
6. Notwithstanding anything to the contrary in the Credit Agreement and provided that no Default or Event of Default has occurred and is continuing or could reasonably be expected to result therefrom, the Borrowers are hereby permitted to incur up to $10,000,000 in aggregate amount of fuel Hedging Transactions outstanding at any one time (provided that such Hedging Transactions are entered into for risk management purposes and not for speculative purposes), which Hedging Transactions may be secured by a lien on Borrowers’ cash in an aggregate amount not in excess of $10,000,000.
7. This Second Amendment shall become effective (according to the terms hereof) on the date that the following conditions have been fully satisfied (the “Second Amendment Effective Date”):
(ka) prior Agent shall have received counterpart copies, with originals to follow of this Second Amendment duly executed and delivered by the Borrowers, the Agent and the requisite Lenders (as applicable) and in form and substance satisfactory to Agent and an original Revolving Credit Note payable to Comerica Bank in form and substance acceptable to the date the Revolving Credit Increase becomes available, each Lender, if applicable, Agent..
(b) Agent shall have completed its flood insurance due diligence received secretary’s certificates and flood insurance compliance as required as a result resolutions for each of such increase; andthe Borrowers.
(lc) no Revolving Agent shall have received departing lender letters from each of the other Lenders party to the Credit Increase Agreement besides Comerica Bank.
(d) No Default or Event of Default shall have occurred and be permitted under this Section 2.12 if continuing.
(e) All representations and warranties of the Borrowers are true and correct as of the Second Amendment Effective Date, except to the extent such increase would result in representation and warranty relates solely to another date certain.
(f) Sterling shall have paid to Agent a violation of any Subordinated Debt Documents or Subordination Agreements$50,000 amendment fee.
8. Each Borrower hereby represents and warrants that, unless the Agent has received satisfactory evidence prior to after giving effect to the amendments contained herein (a) execution and delivery of this Second Amendment and the other Loan Documents required to be delivered hereunder, and the performance by the Company of its obligations under the Credit Agreement as amended hereby (herein, as so amended, the “Amended Credit Agreement”) are within such increase that undersigned’s corporate powers, have been duly authorized, are not in contravention of law or the holders terms of its articles of incorporation or bylaws or other organic documents of the parties thereto, as applicable, and except as have been previously obtained do not require the consent or approval, material to the amendments contemplated in this Second Amendment or the Amended Credit Agreement, of any governmental body, agency or authority, and this Second Amendment, the Amended Credit Agreement and the other Loan Documents required to be delivered hereunder, will constitute the valid and binding obligations of such Subordinated Debt undersigned parties enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, ERISA or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law), (b) the representations and warranties set forth the Amended Credit Agreement are true and correct on and as of the date hereof (except to the extent such representations specifically relate to an earlier date), and such representations and warranties are and shall remain continuing representations and warranties during the entire life of the Amended Credit Agreement, and (c) as of the Second Amendment Effective Date, no Default or Event of Default shall have consented occurred and be continuing.
9. Except as specifically set forth above, this Second Amendment shall not be deemed to amend or alter in any respect the terms and conditions of the Credit Agreement, any of the Notes issued thereunder or any of the other Loan Documents, or to constitute a waiver by the Agent or any Lender of any right or remedy under or a consent to any transaction not meeting the terms and conditions of the Credit Agreement, any of the Notes issued thereunder or any of the other Loan Documents.
10. Each Borrower hereby acknowledges and agrees that this Second Amendment and the amendments contained herein do not constitute any course of dealing or other basis for altering any obligation of such increase on Borrower or any other party or any rights, privilege or remedy of the Agent or any Lender under the Credit Agreement, any other Loan Document, any other agreement or document, or any contract or instrument.
11. Each Borrower hereby reaffirms its obligations under the Credit Agreement, as amended as of the date hereof, and each other Loan Document previously executed and delivered by it, or executed and delivered in accordance with this Second Amendment. Each reference in the Credit Agreement to “this Agreement” or “the Credit Agreement” shall be deemed to refer to Credit Agreement as amended by this Second Amendment and each other amendment thereto from time to time.
12. Unless otherwise defined to the contrary herein, all capitalized terms satisfactory used in this Second Amendment shall have the meaning set forth in the Credit Agreement.
13. This Second Amendment may be executed in counterpart in accordance with Section 13.9 of the Credit Agreement.
14. This Second Amendment shall be construed in accordance with and governed by the laws of the State of Texas (without giving effect to Agent.principles of conflict of laws). By: /s/ Jxxxx X. XxXxxx Jxxxx X. XxXxxx Its: Senior Vice President
Appears in 1 contract
Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.122.13) not to exceed exceed, when added to the Revolving Credit amount of any Additional Term Loans and Term Loan Increases made in accordance with Section 4.10, the Maximum Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.122.13, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three (3) Requests for Revolving Credit Increase and no Request for Increase may be made on or after December 31, 2021the date that is twelve (12) months prior to the Revolving Credit Maturity Date without the consent of the Agent;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.122.13, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase AmountIncrease, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.122.13) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.122.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding EurocurrencyEurodollar-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances;
(hf) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.122.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and;
(jh) any Revolving Credit Optional Increase made pursuant to this Section 2.13, and any Advances made in respect thereof, shall be subject to the same terms as are applicable to the existing Revolving Credit Aggregate Commitment and any Advances made in respect thereof;
(i) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion;; and
(kj) prior to the date the Revolving Credit Increase increased commitment becomes available, each Lender, if applicable, Lender shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Optional Increase in Revolving Credit. Borrower may request that the Revolving Credit Aggregate Commitment be increased in an aggregate amount (for all such requests under this Section 2.12) not to exceed the Revolving Credit Optional Increase Amount, subject, in each case, to Section 11.1 hereof and to the satisfaction concurrently with or prior to the date of each such request of the following conditions:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the Annual Recurring Revenue Run Rate (calculated as of the month end immediately preceding the date of the request) shall be at least $145,000,000;
(c) Borrower shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrower previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.12, Borrower may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that Borrower may make no more than three (3) Requests for Revolving Credit Increase and no Request for Increase may be made after December 31October 1, 20212015;
(db) within three (3) Business Days after the Agent’s receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment Amount in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto within such time period determined by Borrower in consultation with Agent (which shall in no event be sooner later than ten (10) Business Days of the Agent’s informing such Revolving Credit Lender of the Request for Revolving Credit Increase); if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Revolving Credit Commitment AmountCommitment. If any one or more Revolving Credit Lenders shall elect not to increase its Revolving Credit Commitment Amountcommitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.12, any existing Revolving Credit Lender which agrees to increase its Revolving Credit Commitment Amount commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable Revolving Credit Commitment Amount commitments (or to provide a commitment). Notwithstanding anything to the contrary in the foregoing, Western Alliance Bank hereby agrees to increase its Revolving Credit Aggregate Commitment by up to $15,000,000 in the aggregate as a result of any Requests for Revolving Credit Increase that results in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount; provided that such advance commitment shall in no way affect the opportunity for any other Revolving Credit Lender to increase its commitment based on its Revolving Credit Percentage as set forth above; provided further that if any Requests for Revolving Credit Increase does not result in an increase in the Revolving Credit Aggregate Commitments of all Revolving Credit Lenders by the full Revolving Credit Optional Increase Amount, then any increase of Western Alliance Bank’s Revolving Credit Aggregate Commitment shall be subject to Western Alliance Bank’s prior approval;
(ec) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.12) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.12) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(fd) no New Revolving Credit Lender shall receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(ge) Borrower shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest, fees (including the Revolving Credit Facility Fee, which shall not be duplicative) and other amounts, if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrower had prepaid such Advances;
(hf) if requested, Borrower shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender’s Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.12), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(ig) prior to the date the increased commitment becomes available, the Borrower shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1i) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which the Borrower has delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b); and;
(2ii) a certificate signed by a Responsible Officer of Borrower (A) certifying and attaching the resolutions adopted by Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (2) no Default or Event of Default shall have occurred and be continuing; and
(jiii) such amendments, acknowledgments, consents, documents, instruments, any registrations, if any, shall have been executed and delivered and/or obtained by Borrower as required by the Agent, in its reasonable discretion;
(k) prior to the date the Revolving Credit Increase becomes available, each Lender, if applicable, shall have completed its flood insurance due diligence and flood insurance compliance as required as a result of such increase; and
(l) no Revolving Credit Increase shall be permitted under this Section 2.12 if such increase would result in a violation of any Subordinated Debt Documents or Subordination Agreements, unless the Agent has received satisfactory evidence prior to giving effect to such increase that the holders of any such Subordinated Debt shall have consented to such increase on terms satisfactory to Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
