Accordion Option. (a) The Borrower may, at any time prior to the Maturity Date, upon providing 45 days prior written notice to the Agent (a "Request for Increase") at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders; (b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below. (c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedent: (i) a review by the Lenders, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability; (ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower; (iii) the Borrower shall have established a Borrowing Base in an amount equal to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount; (iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion of the Requested Increased Commitment Amount; (v) no Default or Event of Default shall have occurred that is continuing under this Agreement or would occur as a result of such increase as determined by the Agent and Lenders; (vi) payment of increased fees as determined by the Lenders in their reasonable discretion; and (vii) the Borrower shall deliver an amending agreement to the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lenders.
Appears in 1 contract
Sources: Credit Agreement
Accordion Option. (ai) The Subject to subsection 2.1(f)(ii), unless a Default or an Event of Default has occurred and is then continuing and except as otherwise provided herein, Administrative Borrower maymay make a maximum of one (1) request, at any time prior to the Maturity Date, upon providing 45 days prior written by notice to the Agent Agent, that the Accordion Lenders increase Revolving Credit Commitments hereunder (in the case of existing Revolving Credit Lenders) or make a "Request for Increase"Revolving Credit Commitment (in the case of an additional financial institution which is not a Revolving Credit Lender at such time), the “Accordion Activation”), (ii) at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount upon receipt of the increase shall be referred to herein asAccordion Activation notice, the "Requested Increased Commitment Amount"). The Agent shall forthwithhave the right to solicit additional financial institutions to become Revolving Credit Lenders for purposes of this Agreement or to encourage any Revolving Credit Lender to increase its Revolving Credit Commitment, provided that (A) each such financial institution that becomes a Revolving Credit Lender shall agree to become a party to, and in any event within two (2) Banking Days upon receiving the Request for Increaseshall assume and agree to be bound by, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as this Agreement subject to whether or not it agrees to such Request for Increase, and any all terms and conditions hereof; (B) the Agent shall have no obligation to which any Borrower or to any Revolving Credit Lender to solicit additional financial institutions or any Revolving Credit Lender pursuant to this subsection 2.1(f) and each such Accordion Lender increasing its approval is subject, not later than twenty (20Revolving Credit Commitment pursuant to this subsection 2.1(f) Banking Days after the Increase Notification Date; provided that shall execute a Confirmation of Accordion Commitment in the event any Lender does not advise the Agent within such twenty form of Exhibit C-2 attached hereto (20a “Confirmation of Accordion Commitment”); (C) Banking Day period, such no Revolving Credit Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard any obligation to the Request for IncreaseBorrowers, the Agent or any other Revolving Credit Lender to increase its Revolving Credit Commitment or such Revolving Credit Lender’s Pro Rata Share, (D) in no event shall advise the Borrower whether all Revolving Credit Commitments of the Accordion Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, be increased pursuant to Section 2.23(athis subsection 2.1(f) hereofby an amount which exceeds, one or more Lenders elect not to participate in the Requested Increased Commitment aggregate, the Accordion Amount, (E) in no event shall the Borrower may, with and subject Revolving Credit Commitment of all Revolving Credit Lenders be increased under this subsection 2.1(f) so as to the prior written approval of the Agent and Lendersexceed, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarificationaggregate, the Lenders who participate in the Requested Increased Commitment Maximum Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion (after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(viAccordion Amount), (F) below.
(c) In addition Borrowers shall have Excess Availability of $10,000,000 or more prior to the requirements set out Accordion Activation, (G) on the effective date specified in Section 2.23(a) aboveany Confirmation of Accordion Commitment hereunder, Borrowers shall pay to Agent for the Requested Increased Commitment Amount shall be subject to the satisfaction pro rata accounts of the following conditions precedent:
(i) a review by the Accordion Lenders, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
(iii) the Borrower shall have established a Borrowing Base nonrefundable activation fee in an amount equal to or greater than 0.25% of the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion amount of the Requested Increased Commitment Amount;
Accordion Commitments as a result of such Accordion Activation, and (vH) no Default or Event of Default shall have occurred that is continuing under this Agreement or would will occur as a result of such increase as determined by Accordion Activation, and (iii) on the effective date of the Accordion Activation effected in accordance with this subsection 2.1(f), the Agent shall without further consent of the Revolving Credit Lenders, amend (a) Schedule C-1 annexed hereto to reflect the name, Revolving Credit Commitment, and Lenders;
Pro Rata Share of each Revolving Credit Lender and the Maximum Amount as increased by such Accordion Activation and (vib) payment of increased fees this Agreement and the other Loan Documents to make such conforming changes to this Agreement and the other Loan Documents as determined by the Lenders in their reasonable discretion; and
(vii) the Borrower shall deliver an amending agreement to the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of determine are necessary to effectuate the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the LendersAccordion Activation.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Accordion Option. (a) The Borrower may, at At any time prior to during the Maturity Dateterm of this Agreement, upon providing 45 days prior written notice the Borrower may deliver an Accordion Option Notice to the Agent requesting that the Total Commitments be increased by an amount (a "Request for Increase"the Additional Commitment) at any timewhich, request a one-time increase to when aggregated with all other amounts by which the aggregate Operating Facility Total Commitments up to have been increased by means of the total amount operation of $13,000,000 Canadian Dollars (or this Clause 2.6, since the Equivalent Amount thereof in United States Dollars)date of this Agreement, does not exceed USD 50,000,000. Such Request for Increase shall Each Additional Commitment must be for a minimum of USD 10,000,000 and no more than two Accordion Option Notices may be delivered during the term of this Agreement.
(b) Upon receipt of an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for IncreaseAccordion Option Notice, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of promptly notify the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall Each Accordion Option Notice will not be subject to the satisfaction of the following conditions precedentregarded as being duly completed unless it confirms:
(i) a review the identity of each Lender or other bank, financial institution, trust, fund or other entity (each, an Accordion Lender) selected by the Lenders, in their sole discretion, Borrower (each of which shall not be a member of the margin conditionsGroup) that is willing to assume all of the obligations of a Lender corresponding to an Additional Commitment; and
(ii) that on the date of that Accordion Option Notice the Repeating Representations to be made by each Obligor are true in all material respects and no Default is continuing or would result from the increase in Commitments, liquidity reserves and Excess Availabilityshall be validly delivered only if executed by the Borrower and each applicable Accordion Lender.
(d) No existing Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment.
(e) The Borrower may only implement Additional Commitments to the extent that following implementation of any requested increase, the Total Commitments do not at any time after the date of this Agreement exceed USD 100,000,000 in aggregate.
(f) All Additional Commitments shall be made available on the same terms (including as to Margin, fees, ranking, pro rata sharing, availability period, currencies in which the Additional Commitments may be drawn and termination date) as the Facility and the Additional Commitments may not enjoy the benefit of any more onerous financial covenants or other terms than apply to the Facility generally.
(g) Following the delivery of a valid Accordion Option Notice, the requested Additional Commitments shall become effective on the later of:
(i) the date specified in that Accordion Option Notice as the date on which the proposed increase in the Commitments is to take effect;
(ii) the execution by the Agent of the Accordion Option Notice (and the Agent shall, subject to paragraph (iii) below, as soon as reasonably practicable after DocuSign Envelope ID: 9280C6A2-0B54-4105-ADC3-B64316B92B07 receipt by it of a duly completed Accordion Option Notice appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Option Notice); and
(iii) in relation to an Accordion Lender which is not a Lender immediately prior to the relevant increase, the date on which the Agent confirms that it has completed all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption by the Accordion Lender of the relevant Additional Commitments, the completion of which the Agent shall have received binding commitments from promptly notify to the Lenders Borrower and the Accordion Lender, such date being the Accordion Option Increase Date.
(h) The introduction of Additional Commitments pursuant to this Clause 2.6 shall occur as follows:
(i) the increase in the amount Total Commitments shall take effect on the Accordion Option Increase Date;
(ii) each Additional Commitment will be assumed by the relevant Accordion Lender, each of whom by executing the relevant Accordion Option Notice confirms its willingness to assume and does assume all of the Requested Increased Commitment Amount and obligations of a Lender corresponding to that are on terms mutually acceptable part of the Additional Commitments which it is to the Lenders and Borrowerassume, as if it had been an Original Lender;
(iii) each of the Borrower Obligors and each Accordion Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Accordion Lender would have established a Borrowing Base in assumed and/or acquired had the Accordion Lender been an amount equal to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment AmountOriginal Lender;
(iv) to the extent not already a Party as a Lender, each existing Accordion Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion shall become a Party as a Lender and each Accordion Lender and each of the Requested Increased Commitment Amount;other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Lender and those Finance Parties would have assumed and/or acquired had the Accordion Lender been an Original Lender; and
(v) no Default or Event the Commitments of Default the other Lenders shall have occurred that is continuing continue in full force and effect (and, for the avoidance of doubt, their amount shall not be varied by the assumption of Commitments by an Accordion Lender pursuant to this Clause 2.6).
(i) Any agreement of a Lender under this Agreement or would occur as a result of such Clause 2.6 to increase as determined by the Agent and Lenders;Total Commitments is subject to the further conditions precedent that on the Accordion Option Increase Date:
(vii) payment of increased fees as determined by the Lenders Repeating Representations are true in their reasonable discretionall material respects; and
(viiii) no Default is continuing or would be reasonably likely to result from the increase in Commitments.
(j) The Borrower may pay to an Accordion Lender a fee in the amount and at the times agreed between the Borrower and that Accordion Lender in a Fee Letter. DocuSign Envelope ID: 9280C6A2-0B54-4105-ADC3-B64316B92B07
(k) On and from the Accordion Option Increase Date, this Agreement shall be amended, read and construed as if the Accordion Lender were party hereto with a Commitment or Commitments as detailed in the Accordion Option Notice.
(l) Any amounts payable to the Lenders by any Obligor on or before an Accordion Option Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) that Accordion Option Increase Date) in respect of any period ending on or prior to that Accordion Option Increase Date shall be for the account of the Lenders prior to such Accordion Option Increase Date and no Accordion Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) that Accordion Option Increase Date).
(m) Each Lender irrevocably and unconditionally authorises the Agent to execute on its behalf:
(i) any Accordion Option Notice delivered to it pursuant to this Clause 2.6; and
(ii) any amendments required to the Finance Documents that are consequential on, incidental to or required to implement or reflect the introduction of Additional Commitments pursuant to this Clause 2.6.
(n) Clause 24.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.6 in relation to an Accordion Lender as if references in that Clause to:
(i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase;
(ii) the Borrower shall deliver an amending agreement New Lender were references to that Accordion Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
(o) Any utilisation of Additional Commitments made available under this Clause 2.6 shall, for the Credit Agreement avoidance of doubt:
(i) constitute a Loan under this Agreement; and
(ii) be repaid in form and substance satisfactory to accordance with the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lendersthis Agreement.
Appears in 1 contract
Accordion Option. Unless a Potential Event of Default or an Event of Default has occurred and is then continuing and except as otherwise provided herein, Company may make a maximum of one (a1) The Borrower may, at any time prior to request that the Maturity Date, upon providing 45 days prior written notice to the Agent Accordion Lenders increase their Commitments hereunder (a "Request for Increase") at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein assuch increase, the "Requested Increased Commitment AmountAccordion Activation"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedent:
(i) a review Company shall have made such request subsequent to the Closing Date but prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) in no event shall the Commitments of the Accordion Lenders be increased pursuant to this subsection 2.1H by the Lendersan amount which exceeds, in their sole discretionthe aggregate, of the margin conditionsAccordion Amount, liquidity reserves and Excess Availability;
(ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
(iii) in no event shall the Borrower Commitment of all Lenders be increased under this subsection 2.1H so as to exceed, in the aggregate, the Maximum Revolving Amount, (iv) on the effective date specified in any Confirmation of Increase in Commitment hereunder (as defined below), Company shall have established pay to Agent for the pro rata accounts of the Accordion Lenders, a Borrowing Base nonrefundable activation fee in an amount equal to or greater than 0.25% of the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion amount of the Requested Increased Commitment Amount;
increase in Commitments as a result of such Accordion Activation, and (v) no Potential Event of Default or Event of Default shall have occurred that is continuing under this Agreement or would will occur as a result of such Accordion Activation. Upon a request by Company hereunder, each Accordion Lender shall increase as determined its Commitment by an amount equal to its Accordion Commitment. The amount of each Accordion Lender's Accordion Commitment is set forth opposite its name on Schedule 2.1 annexed hereto. Each Accordion Lender increasing its Commitment pursuant to this subsection 2.1H shall execute a Confirmation of Increase in Commitment in the Agent and Lenders;
form of Exhibit VI attached hereto (vi) payment a “Confirmation of increased fees as determined by Increase in Commitment”). On the Lenders effective date of the Accordion Activation effected in their reasonable discretion; and
accordance with this subsection 2.1H, Schedule 2.1 annexed hereto shall be deemed to be amended to reflect (viia) the Borrower shall deliver an amending agreement to name, address, Commitment, and Pro Rata Share of each Lender and (B) the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with Maximum Revolving Amount as increased by such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the LendersAccordion Activation.”
Appears in 1 contract
Accordion Option. (a) The Borrower may, at At any time prior to during the Maturity Dateterm of this Agreement, upon providing 45 days prior written notice the Borrower may deliver an Accordion Option Notice to the Agent requesting that the Total Commitments be increased by an amount (a "Request for Increase"the Additional Commitment) at any timewhich, request a one-time increase to when aggregated with all other amounts by which the aggregate Operating Facility Total Commitments up to have been increased by means of the total amount operation of $13,000,000 Canadian Dollars (or this Clause 2.6 since the Equivalent Amount thereof in United States Dollars)Effective Date, does not exceed USD 100,000,000. Such Request for Increase shall Each Additional Commitment must be for a minimum of USD 10,000,000 and no more than four Accordion Option Notices may be delivered during the term of this Agreement.
(b) Upon receipt of an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for IncreaseAccordion Option Notice, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of promptly notify the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall Each Accordion Option Notice will not be subject to the satisfaction of the following conditions precedentregarded as being duly completed unless it confirms:
(i) a review the identity of each Lender or other bank, financial institution, trust, fund or other entity (each, an Accordion Lender) selected by the Lenders, in their sole discretion, Borrower (each of which shall not be a member of the margin conditionsGroup) that is willing to assume all of the obligations of a Lender corresponding to an Additional Commitment; and
(ii) that on the date of that Accordion Option Notice the Repeating Representations to be made by each Obligor are true in all material respects and no Default is continuing or would result from the increase in Commitments, liquidity reserves and Excess Availabilityshall be validly delivered only if executed by the Borrower and each applicable Accordion Lender.
(d) No existing Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment.
(e) The Borrower may only implement Additional Commitments to the extent that following implementation of any requested increase, the Total Commitments do not at any time after the date of this Agreement exceed USD 200,000,000 in aggregate.
(f) All Additional Commitments shall be made available on the same terms (including as to Margin, fees, ranking, pro rata sharing, availability period, currencies in which the Additional Commitments may be drawn and termination date) as the Facility and the Additional Commitments may not enjoy the benefit of any more onerous financial covenants or other terms than apply to the Facility generally.
(g) Following the delivery of a valid Accordion Option Notice, the requested Additional Commitments shall become effective on the later of:
(i) the date specified in that Accordion Option Notice as the date on which the proposed increase in the Commitments is to take effect;
(ii) the execution by the Agent of the Accordion Option Notice (and the Agent shall, subject to paragraph (iii) below, as soon as reasonably practicable after receipt by it of a duly completed Accordion Option Notice appearing on its APJ/076001.00588/98366820.7Page 27 face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Option Notice); and
(iii) in relation to an Accordion Lender which is not a Lender immediately prior to the relevant increase, the date on which the Agent confirms that it has completed all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption by the Accordion Lender of the relevant Additional Commitments, the completion of which the Agent shall have received binding commitments from promptly notify to the Lenders Borrower and the Accordion Lender, such date being the Accordion Option Increase Date.
(h) The introduction of Additional Commitments pursuant to this Clause 2.6 shall occur as follows:
(i) the increase in the amount Total Commitments shall take effect on the Accordion Option Increase Date;
(ii) each Additional Commitment will be assumed by the relevant Accordion Lender, each of whom by executing the relevant Accordion Option Notice confirms its willingness to assume and does assume all of the Requested Increased Commitment Amount and obligations of a Lender corresponding to that are on terms mutually acceptable part of the Additional Commitments which it is to the Lenders and Borrowerassume, as if it had been an Original Lender;
(iii) each of the Borrower Obligors and each Accordion Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Accordion Lender would have established a Borrowing Base in assumed and/or acquired had the Accordion Lender been an amount equal to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment AmountOriginal Lender;
(iv) to the extent not already a Party as a Lender, each existing Accordion Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion shall become a Party as a Lender and each Accordion Lender and each of the Requested Increased Commitment Amount;other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Lender and those Finance Parties would have assumed and/or acquired had the Accordion Lender been an Original Lender; and
(v) no Default or Event the Commitments of Default the other Lenders shall have occurred that is continuing continue in full force and effect (and, for the avoidance of doubt, their amount shall not be varied by the assumption of Commitments by an Accordion Lender pursuant to this Clause 2.6).
(i) Any agreement of a Lender under this Agreement or would occur as a result of such Clause 2.6 to increase as determined by the Agent and Lenders;Total Commitments is subject to the further conditions precedent that on the Accordion Option Increase Date:
(vii) payment of increased fees as determined by the Lenders Repeating Representations are true in their reasonable discretionall material respects; and
(viiii) no Default is continuing or would be reasonably likely to result from the increase in Commitments.
(j) The Borrower may pay to an Accordion Lender a fee in the amount and at the times agreed between the Borrower and that Accordion Lender in a Fee Letter. APJ/076001.00588/98366820.7Page 28
(k) On and from the Accordion Option Increase Date, this Agreement shall be amended, read and construed as if the Accordion Lender were party hereto with a Commitment or Commitments as detailed in the Accordion Option Notice.
(l) Any amounts payable to the Lenders by any Obligor on or before an Accordion Option Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) that Accordion Option Increase Date) in respect of any period ending on or prior to that Accordion Option Increase Date shall be for the account of the Lenders prior to such Accordion Option Increase Date and no Accordion Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) that Accordion Option Increase Date).
(m) Each Lender irrevocably and unconditionally authorises the Agent to execute on its behalf:
(i) any Accordion Option Notice delivered to it pursuant to this Clause 2.6; and
(ii) any amendments required to the Finance Documents that are consequential on, incidental to or required to implement or reflect the introduction of Additional Commitments pursuant to this Clause 2.6.
(n) Clause 24.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.6 in relation to an Accordion Lender as if references in that Clause to:
(i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase;
(ii) the Borrower shall deliver an amending agreement New Lender were references to that Accordion Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
(o) Any utilisation of Additional Commitments made available under this Clause 2.6 shall, for the Credit Agreement avoidance of doubt:
(i) constitute a Loan under this Agreement; and
(ii) be repaid in form and substance satisfactory to accordance with the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lendersthis Agreement.
Appears in 1 contract
Sources: Single Currency Revolving Facility Agreement (StoneX Group Inc.)
Accordion Option. (a) The Unless a Default or an Event of Default has occurred and is then continuing, so long as Borrowers shall not have elected to permanently reduce the Commitments hereunder and except as otherwise provided herein, Administrative Borrower may, at any time prior to may make a maximum of four requests that the Maturity Date, upon providing 45 days prior written notice to the Agent (a "Request for Increase") at any time, request a one-time Accordion Lenders increase to the aggregate Operating Facility their Commitments up to the total amount hereunder in minimum increments of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (each such increase, an “Accordion Activation” and the requested amount of the increase each such increase, an “Accordion Amount”) by an amount which shall be referred to herein asnot exceed, together with all Accordion Amounts in respect of all other Accordion Activations, the "Requested Increased Commitment Amount"). The Agent shall forthwithaggregate amount of all Accordion Commitments; provided, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedent:
(i) a review by Administrative Borrower shall have made such request subsequent to the LendersClosing Date but prior to Termination Date, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) in no event shall the Agent shall have received binding commitments from Commitments of the Accordion Lenders be increased pursuant to this Section 2.2(h) by an amount which exceeds, in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
aggregate, $25,000,000, (iii) in no event shall the Borrower shall have established a Borrowing Base in an amount equal Commitments of all Lenders be increased under this Section 2.2(h) so as to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
exceed $250,000,000, (iv) each existing in no event shall the increase for any Accordion Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion of the Requested Increased Commitment Amount;
exceed its respective Accordion Commitment, (v) all Accordion Activations are made ratably among the Accordion Lenders in accordance with their respective Accordion Commitments, (vi) no Default or Event of Default shall have occurred that is continuing under this Agreement or would will occur as a result of such increase as determined by the Agent and Lenders;
(vi) payment of increased fees as determined by the Lenders in their reasonable discretion; and
Accordion Activation, (vii) no default or event of default will occur under any other agreement of Indebtedness as a result of such Accordion Activation and (viii) Borrowers shall pay Agent (for the Borrower shall deliver an amending ratable benefit of the Accordion Lenders, subject to any letter agreement to the Credit Agreement in form and substance satisfactory to the between Agent and Accordion Lenders), which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions an Accordion Activation Fee. The amount of each Accordion Lender’s Accordion Commitment is set forth opposite its name on Schedule C-1 annexed hereto. On the effective date of the Borrower's Counsel Accordion Activation effected in accordance with this Section 2.2(h), Schedule C-1 annexed hereto shall be deemed to be amended to reflect (a) the name, address, Commitment, and Pro Rata Share of each Lender, and (B) the Maximum Revolver Amount and Commitments as may be required increased by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lenderssuch Accordion Activation.
Appears in 1 contract
Accordion Option. (a) The Borrower may, at At any time prior to during the Maturity Dateterm of this Agreement, upon providing 45 days prior written notice the Borrower may deliver an Accordion Option Notice to the Agent requesting that the Total Commitments be increased by an amount (a "Request for Increase"the Additional Commitment) at any timewhich, request a one-time increase to when aggregated with all other amounts by which the aggregate Operating Facility Total Commitments up to have been increased by means of the total amount operation of $13,000,000 Canadian Dollars (or this Clause 2.6, since the Equivalent Amount thereof in United States Dollars)date of this Agreement, does not exceed USD 25,000,000. Such Request for Increase shall Each Additional Commitment must be for a minimum of USD 10,000,000 and no more than two Accordion Option Notices may be delivered during the term of this Agreement.
(b) Upon receipt of an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for IncreaseAccordion Option Notice, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of promptly notify the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall Each Accordion Option Notice will not be subject to the satisfaction of the following conditions precedentregarded as being duly completed unless it confirms:
(i) a review the identity of each Lender or other bank, financial institution, trust, fund or other entity (each, an Accordion Lender) selected by the Lenders, in their sole discretion, Borrower (each of which shall not be a member of the margin conditionsGroup) that is willing to assume all of the obligations of a Lender corresponding to an Additional Commitment; and
(ii) that on the date of that Accordion Option Notice the Repeating Representations to be made by each Obligor are true in all material respects and no Default is continuing or would result from the increase in Commitments, liquidity reserves and Excess Availabilityshall be validly delivered only if executed by the Borrower and each applicable Accordion Lender.
(d) No existing Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment.
(e) The Borrower may only implement Additional Commitments to the extent that following implementation of any requested increase, the Total Commitments do not at any time after the date of this Agreement exceed USD 50,000,000 in aggregate.
(f) All Additional Commitments shall be made available on the same terms (including as to Margin, fees, ranking, pro rata sharing, availability period, currencies in which the Additional Commitments may be drawn and termination date) as the Facility and the Additional Commitments may not enjoy the benefit of any more onerous financial covenants or other terms than apply to the Facility generally.
(g) Following the delivery of a valid Accordion Option Notice, the requested Additional Commitments shall become effective on the later of:
(i) the date specified in that Accordion Option Notice as the date on which the proposed increase in the Commitments is to take effect;
(ii) the execution by the Agent of the Accordion Option Notice (and the Agent shall, subject to paragraph (iii) below, as soon as reasonably practicable after receipt by it of a duly completed Accordion Option Notice appearing on its APJ/MSXM/076001.00588/80174749.8Page 27 face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Option Notice); and
(iii) in relation to an Accordion Lender which is not a Lender immediately prior to the relevant increase, the date on which the Agent confirms that it has completed all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption by the Accordion Lender of the relevant Additional Commitments, the completion of which the Agent shall have received binding commitments from promptly notify to the Lenders Borrower and the Accordion Lender, such date being the Accordion Option Increase Date.
(h) The introduction of Additional Commitments pursuant to this Clause 2.6 shall occur as follows:
(i) the increase in the amount Total Commitments shall take effect on the Accordion Option Increase Date;
(ii) each Additional Commitment will be assumed by the relevant Accordion Lender, each of whom by executing the relevant Accordion Option Notice confirms its willingness to assume and does assume all of the Requested Increased Commitment Amount and obligations of a Lender corresponding to that are on terms mutually acceptable part of the Additional Commitments which it is to the Lenders and Borrowerassume, as if it had been an Original Lender;
(iii) each of the Borrower Obligors and each Accordion Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Accordion Lender would have established a Borrowing Base in assumed and/or acquired had the Accordion Lender been an amount equal to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment AmountOriginal Lender;
(iv) to the extent not already a Party as a Lender, each existing Accordion Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion shall become a Party as a Lender and each Accordion Lender and each of the Requested Increased Commitment Amount;other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Lender and those Finance Parties would have assumed and/or acquired had the Accordion Lender been an Original Lender; and
(v) no Default or Event the Commitments of Default the other Lenders shall have occurred that is continuing continue in full force and effect (and, for the avoidance of doubt, their amount shall not be varied by the assumption of Commitments by an Accordion Lender pursuant to this Clause 2.6).
(i) Any agreement of a Lender under this Agreement or would occur as a result of such Clause 2.6 to increase as determined by the Agent and Lenders;Total Commitments is subject to the further conditions precedent that on the Accordion Option Increase Date:
(vii) payment of increased fees as determined by the Lenders Repeating Representations are true in their reasonable discretionall material respects; and
(viiii) no Default is continuing or would be reasonably likely to result from the increase in Commitments.
(j) The Borrower may pay to an Accordion Lender a fee in the amount and at the times agreed between the Borrower and that Accordion Lender in a Fee Letter. APJ/MSXM/076001.00588/80174749.8Page 28
(k) On and from the Accordion Option Increase Date, this Agreement shall be amended, read and construed as if the Accordion Lender were party hereto with a Commitment or Commitments as detailed in the Accordion Option Notice.
(l) Any amounts payable to the Lenders by any Obligor on or before an Accordion Option Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) that Accordion Option Increase Date) in respect of any period ending on or prior to that Accordion Option Increase Date shall be for the account of the Lenders prior to such Accordion Option Increase Date and no Accordion Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) that Accordion Option Increase Date).
(m) Each Lender irrevocably and unconditionally authorises the Agent to execute on its behalf:
(i) any Accordion Option Notice delivered to it pursuant to this Clause 2.6; and
(ii) any amendments required to the Finance Documents that are consequential on, incidental to or required to implement or reflect the introduction of Additional Commitments pursuant to this Clause 2.6.
(n) Clause 24.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.6 in relation to an Accordion Lender as if references in that Clause to:
(i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase;
(ii) the Borrower shall deliver an amending agreement New Lender were references to that Accordion Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
(o) Any utilisation of Additional Commitments made available under this Clause 2.6 shall, for the Credit Agreement avoidance of doubt:
(i) constitute a Loan under this Agreement; and
(ii) be repaid in form and substance satisfactory to accordance with the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lendersthis Agreement.
Appears in 1 contract
Accordion Option. (a) The Borrower may, at any time prior Notwithstanding anything in this Agreement to the Maturity Datecontrary, upon providing 45 days prior written notice to the Agent (a "Request for Increase") at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all each of the Lenders their respective decision or deemed decision with regard to the Request for Increaseagrees that at anytime until January 31, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty2006, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations so long as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedent:
(i) a review by the Lenders, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
(iii) the Borrower shall have established a Borrowing Base in an amount equal to or greater than the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion of the Requested Increased Commitment Amount;
(v) no Default or Event of Default shall have has occurred that or is continuing or would result there from, the Borrower may request that the Commitment be increased in an aggregate amount up to the Increased Amount to facilitate the Embassy Acquisition or other acquisitions permitted under this Agreement. Following any such request by the Borrower, the then existing Lenders shall each have first right, together with other then existing Lenders to increase, pro rata, the amount of their respective Commitment, provided that the aggregate amount of all Commitments outstanding following any such increases does not exceed the Increased Amount. In the event that the then existing Lenders fail to increase their respective Commitments in the aggregate up to the Increased Amount, the Agent and the Borrower shall each individually have the right to solicit additional financial institutions to become Lenders for purposes of this Agreement, provided that (a) each financial institution that becomes a Lender shall be a commercial bank legally qualified to act as a lender under the terms of the Credit Agreement and shall agree to become a party to, and shall assume and agree to be bound by, this Agreement, subject to all terms and conditions hereof; (b) any increase in the amount of the Commitment shall be used solely to finance an acquisition permitted under this Agreement or would occur as a result other acquisition that has been approved by each of the Lenders and the Agent; and (c) in no event shall the addition of any Lender or Lenders or the increase in the Commitment of any Lender under this Section 2.14 increase the sum of the total of the Commitments of all Lenders under this Agreement to an amount greater than the Increased Amount. Each of the Lenders agrees that upon the addition of any Lender or the increase in the Commitment of any Lender, the Agent shall, without the further consent of the Lenders, amend Schedule 2.01 to reflect such increase or addition and may amend this Agreement and the other Loan Documents to make such conforming changes to this Agreement and the other Loan Documents including, without limitation, the Notes, as determined by the Agent shall determine are necessary to accomplish the increase in the total Commitment and Lenders;
(vi) payment of increased fees as determined by the Lenders in their reasonable discretion; and
(vii) adjustments to the Commitment percentages and the assignability provisions relating thereto, and the Borrower shall execute or deliver an amending agreement to the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which any such amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel document as may be reasonably required by the Agent and Lenders, each or any Lender in form and substance satisfactory connection therewith. The Agent agrees to provide to the Agent Lenders and the LendersBorrower an executed copy of any amendments made pursuant to this Section 2.14.
Appears in 1 contract
Sources: Credit Agreement (Mestek Inc)
Accordion Option. Unless a Potential Event of Default or an Event of Default has occurred and is then continuing and except as otherwise provided herein, Company may make a maximum of one (1) request that the Accordion Lenders increase their Commitments hereunder (such increase, the “Accordion Activation”); provided that (i) Company shall have made such request subsequent to the Closing Date but prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) in no event shall the Commitments of the Accordion Lenders be increased pursuant to this subsection 2.1H by an amount which exceeds, in the aggregate, the Accordion Amount, (iii) in no event shall the Commitment of all Lenders be increased under this subsection 2.1H so as to exceed, in the aggregate, the Maximum Revolving Amount, (iv) Company shall have Excess Availability of (a) The Borrower may, at any time $5,000,000 or more prior to the Maturity Date, upon providing 45 days prior written notice to the Agent (a "Request for Increase") at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, Accordion Activation and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent $7,500,000 or more following the Accordion Activation, (v) on the effective date specified in any Confirmation of Increase in Commitment hereunder (as defined below), Company shall pay to Agent for the pro rata accounts of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Accordion Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedent:
(i) a review by the Lenders, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
(iii) the Borrower shall have established a Borrowing Base nonrefundable activation fee in an amount equal to or greater than 0.25% of the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion amount of the Requested Increased Commitment Amount;
increase in Commitments as a result of such Accordion Activation, and (vvi) no Potential Event of Default or Event of Default shall have occurred that is continuing under this Agreement or would will occur as a result of such Accordion Activation. Upon a request by Company hereunder, each Accordion Lender shall increase as determined its Commitment by an amount equal to its Accordion Commitment. The amount of each Accordion Lender’s Accordion Commitment is set forth opposite its name on Schedule 2.1 annexed hereto. Each Accordion Lender increasing its Commitment pursuant to this subsection 2.1H shall execute a Confirmation of Increase in Commitment in the Agent and Lenders;form of Exhibit VI attached hereto (a “Confirmation of Increase in Commitment”). On the effective date of the Accordion Activation effected in accordance with this subsection 2.1H, Schedule 2.1 annexed hereto shall be deemed to be amended to reflect
(vi) payment of increased fees as determined by the Lenders in their reasonable discretion; and
(viia) the Borrower shall deliver an amending agreement to name, address, Commitment, and Pro Rata Share of each Lender and (B) the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with Maximum Revolving Amount as increased by such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the LendersAccordion Activation.
Appears in 1 contract
Accordion Option. (ai) The Subject to subsection 2.1(f)(ii), unless a Default or an Event of Default has occurred and is then continuing and except as otherwise provided herein, Administrative Borrower maymay make a maximum of one (1) request, at any time prior to the Maturity Date, upon providing 45 days prior written by notice to the Agent, that the Accordion Lenders increase Commitments hereunder (in the case of existing Lenders) or make a Commitment (in the case of an additional financial institution which is not a Lender at such time), the "Accordion Activation"), (ii) upon receipt of the Accordion Activation notice, Agent shall have the right to solicit additional financial institutions to become Lenders for purposes of this Agreement or to encourage any Lender to increase its Commitment, provided that (A) each such financial institution that becomes a Lender shall agree to become a party to, and shall assume and agree to be bound by, this Agreement subject to all terms and conditions hereof; (B) the Agent shall have no obligation to any Borrower or to any Lender to solicit additional financial institutions or any Lender pursuant to this subsection 2.1(f) and each such Accordion Lender increasing its Commitment pursuant to this subsection 2.1(f) shall execute a Confirmation of Accordion Commitment in the form of Exhibit C-2 attached hereto (a "Request for IncreaseConfirmation of Accordion Commitment"); (C) at no Lender shall have any time, request a one-time increase obligation to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for IncreaseBorrowers, the Agent or any other Lender to increase its Commitment or such Lender's Pro Rata Share, (D) in no event shall advise the Borrower whether all Commitments of the Accordion Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;
(b) If unanimous written consent of the Lenders provided with respect to a Request for Increase and, be increased pursuant to Section 2.23(athis subsection 2.1(f) hereofby an amount which exceeds, one or more Lenders elect not to participate in the Requested Increased Commitment aggregate, the Accordion Amount, (E) in no event shall the Borrower may, with and subject Commitment of all Lenders be increased under this subsection 2.1(f) so as to the prior written approval of the Agent and Lendersexceed, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarificationaggregate, the Lenders who participate in the Requested Increased Commitment Maximum Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion (after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(viAccordion Amount), (F) below.
Borrowers shall have Excess Availability of (cI) In addition $10,000,000 or more prior to the requirements set out Accordion Activation and (II) $10,000,000 or more following the Accordion Activation, (G) on the effective date specified in Section 2.23(a) aboveany Confirmation of Accordion Commitment hereunder, Borrowers shall pay to Agent for the Requested Increased Commitment Amount shall be subject to the satisfaction pro rata accounts of the following conditions precedent:
(i) a review by the Accordion Lenders, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) the Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable to the Lenders and Borrower;
(iii) the Borrower shall have established a Borrowing Base nonrefundable activation fee in an amount equal to or greater than 0.25% of the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion amount of the Requested Increased Commitment Amount;
Accordion Commitments as a result of such Accordion Activation, and (vH) no Default or Event of Default shall have occurred that is continuing under this Agreement or would will occur as a result of such increase as determined by Accordion Activation, and (iii) on the effective date of the Accordion Activation effected in accordance with this subsection 2.1(f), the Agent and shall without further consent of the Lenders;, amend
(via) payment Schedule C-1 annexed hereto to reflect the name, Commitment, and Pro Rata Share of each Lender and the Maximum Amount as increased fees by such Accordion Activation and (b) this Agreement and the other Loan Documents to make such conforming changes to this Agreement and the other Loan Documents as determined by the Lenders in their reasonable discretion; and
(vii) the Borrower shall deliver an amending agreement to the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of determine are necessary to effectuate the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the LendersAccordion Activation.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Accordion Option. (aA) The Subject to the terms and conditions hereof, Borrower may, may request at any time prior and from time to time during the Maturity DateTerm up to a maximum of twice per fiscal year, upon providing 45 days prior by written notice to Agent, an increase in the Agent Commitment Amount (a "Request for “Facility Increase"”) at any time, request a one-time increase subject to the aggregate Operating terms and conditions hereinafter set forth (such request, a “Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States DollarsIncrease Request”). Such Facility Increase Request for Increase shall be for an amount no less than $5,000,000 (set forth the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for requested Facility Increase, notify the Lenders of such Request for Increase by the Borrower which amount shall not be less than Twenty Five Million Dollars (such date being the "Increase Notification Date"$25,000,000). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms amounts exceeding Twenty Five Million Dollars ($25,000,000) shall be in increments of Five Million Dollars ($5,000,000). Provided that (i) the sum of the current Commitment Amount plus the Facility Increase does not exceed the Borrowing Base Availability and conditions (ii) no Default or Event of Default has occurred and is continuing as of the date of the Facility Increase Request and as of the time of the making of the Facility Increase and after giving effect thereto, Lead Arranger shall use reasonable commercial efforts to which its approval arrange adequate additional commitments from Lenders or from New Lenders (as such term is subject, not later than defined below) to increase the Commitment Amount by the amount of the Facility Increase Request. Within twenty (20) Banking Days after the days of receipt of such Facility Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day periodRequest, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all in writing of its acceptance or rejection of the Lenders have agreed Facility Increase Request; failure to such Request for Increase. For greater certainty, any Request for Increase so advise Borrower shall require the unanimous written consent of the Lenders;constitute rejection thereof.
(bB) If unanimous written consent of Upon acceptance by Agent, the Facility Increase may be extended to Borrower either by having one or more Eligible Assignees (other than Lenders provided with respect to then holding a Request for Increase and, pursuant to Section 2.23(aCommitment hereunder) hereof, approved by Borrower and Agent (each a “New Lender”) become Lenders hereunder and/or by having any one or more Lenders elect not to participate in the Requested Increased then holding a Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders hereunder (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to at their respective Ratable Portion after giving effect election in their sole discretion) increase the amount of their Commitments (any such Lender that elects to the Request for Increase increase its Commitment and the amending agreement any New Lender being hereinafter referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount as an “Additional Lender” and each Additional Lender shall be subject to the satisfaction approval of Borrower and Agent), provided that on or before the Increase Date (as defined below): (I) unless otherwise agreed by Borrower and Agent, the Commitment of any New Lender shall not be less than Ten Million Dollars ($10,000,000); (II) unless otherwise agreed by Borrower and Agent, the increase in the Commitment of any Lender shall not be by less than $5,000,000; (III) the Commitment Amount, as increased by the amount of the following conditions precedent:
Facility Increase, shall not exceed $175,000,000; (iIV) Borrower and each Additional Lender shall have executed and delivered a review by commitment and acceptance (the Lenders, “Commitment and Acceptance”) substantially in their sole discretion, the form of Schedule F to the margin conditions, liquidity reserves Agreement and Excess Availability;
(ii) the Agent shall have received binding commitments from accepted and executed the Lenders same; (V) unless otherwise agreed by Borrower and Agent and each Additional Lender, Borrower shall have executed and delivered to Agent a Note or Notes payable to the order of each Additional Lender, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (VI) Borrower shall have delivered to Agent an opinion of counsel modified to apply to the Requested Increased increase in the Commitment Amount and that are each Note and Commitment and Acceptance executed and delivered in connection therewith; (VII) Borrower shall pay all required documentary stamp and intangible taxes on terms mutually acceptable the amount of the Facility Increase; (VIII) the Guarantor shall have delivered to Agent a written instrument confirming its consent to the Lenders new Commitments or increases in Commitments (as applicable) and Borrower;
that its Guaranty Agreement continues in full force and effect, enlarged to guaranty the Commitment Amount, as increased by the amount of the Facility Increase; (iiiIX) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as Agent shall have reasonably requested in connection with such new Commitment or increase in a Commitment (as applicable); (X) Borrower shall have established a Borrowing Base pay: (i) to the Agent for the account of the Additional Lenders an upfront fee related to the increased Commitments; and (ii) to the Agent or its affiliate an arrangement fee related to the Facility Increase, and such fees shall be in an amount equal to or greater than be determined by Borrower and Agent, and payable on the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
“Increase Date” (iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion of the Requested Increased Commitment Amount;
as hereinafter defined); and (vXl) no Default or Event of Default shall have occurred that is continuing under this Agreement or would occur exist on the Increase Date (as a result of such increase as determined by the Agent and Lenders;
(vihereinafter defined) payment of increased fees as determined by the Lenders in their reasonable discretion; and
(vii) the Borrower shall deliver an amending agreement after giving effect to the Credit Agreement increase in the Commitment Amount. The form and substance satisfactory of the documents required under clauses (IV) through (IX) above shall be acceptable to Agent in its sole discretion. Agent shall provide written notice to Lenders following any Facility Increase and shall furnish to Lenders, upon request, copies of the Commitment and Acceptance. The effective date of any Facility Increase (“Increase Date”) shall be mutually agreed upon by Borrower, each Additional Lender and Agent.
(C) Nothing contained herein shall constitute or otherwise be deemed to be a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of Borrower or Agent to give or grant any Lender the right to increase its Commitment hereunder. Notwithstanding anything contained to the contrary herein, no Facility Increase Request shall be accepted by Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with if such additional Security, other Documents and supporting certificates, resolutions and opinions acceptance shall cause the outstanding principal balance of the Borrower's Counsel as may be required by Facility (including outstanding Financial and Maintenance Letters of Credit but excluding Performance Letters of Credit) to exceed the Agent and Lenders, each in form and substance satisfactory to Borrowing Base Availability on the Agent and the Lendersmost recently submitted Borrowing Base Certificate.
Appears in 1 contract
Accordion Option. (aA) The Subject to the terms and conditions hereof, Borrower may, may request at any time prior and from time to time during the Maturity DateTerm up to a maximum of twice per fiscal year, upon providing 45 days prior by written notice to Agent, an increase in the Agent Commitment Amount (a "Request for “Facility Increase"”) at any time, request a one-time increase subject to the aggregate Operating terms and conditions hereinafter set forth (such request, a “Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof in United States DollarsIncrease Request”). Such Facility Increase Request for Increase shall be for an amount no less than $5,000,000 (set forth the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for requested Facility Increase, notify the Lenders of such Request for Increase by the Borrower which amount shall not be less than Twenty Five Million Dollars (such date being the "Increase Notification Date"$25,000,000). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms amounts exceeding Twenty Five Million Dollars ($25,000,000) shall be in increments of Five Million Dollars ($5,000,000). Provided that (i) the sum of the current Commitment Amount plus the Facility Increase does not exceed the Borrowing Base Availability and conditions (ii) no Default or Event of Default has occurred and is continuing as of the date of the Facility Increase Request and as of the time of the making of the Facility Increase and after giving effect thereto, Lead Arranger shall use reasonable commercial efforts to which its approval arrange adequate additional commitments from Lenders or from New Lenders (as such term is subject, not later than defined below) to increase the Commitment Amount by the amount of the Facility Increase Request. Within twenty (20) Banking Days after the days of receipt of such Facility Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day periodRequest, such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all in writing of its acceptance or rejection of the Lenders have agreed Facility Increase Request; failure to such Request for Increase. For greater certainty, any Request for Increase so advise Borrower shall require the unanimous written consent of the Lenders;constitute rejection thereof.
(bB) If unanimous written consent of Upon acceptance by Agent, the Facility Increase may be extended to Borrower either by having one or more Eligible Assignees (other than Lenders provided with respect to then holding a Request for Increase and, pursuant to Section 2.23(aCommitment hereunder) hereof, approved by Borrower and Agent (each a “New Lender”) become Lenders hereunder and/or by having any one or more Lenders elect not to participate in the Requested Increased then holding a Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders hereunder (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to at their respective Ratable Portion after giving effect election in their sole discretion) increase the amount of their Commitments (any such Lender that elects to the Request for Increase increase its Commitment and the amending agreement any New Lender being hereinafter referred to in Subsection 2.23(c)(vi) below.
(c) In addition to the requirements set out in Section 2.23(a) above, the Requested Increased Commitment Amount as an “Additional Lender” and each Additional Lender shall be subject to the satisfaction approval of Borrower and Agent), provided that on or before the Increase Date (as defined below): (I) unless otherwise agreed by Borrower and Agent, the Commitment of any New Lender shall not be less than Ten Million Dollars ($10,000,000); (II) unless otherwise agreed by Borrower and Agent, the increase in the Commitment of any Lender shall not be by less than $5,000,000; (III) the Commitment Amount, as increased by the amount of the following conditions precedent:
Facility Increase, shall not exceed $150,000,000; (iIV) Borrower and each Additional Lender shall have executed and delivered a review by commitment and acceptance (the Lenders, “Commitment and Acceptance”) substantially in their sole discretion, the form of Schedule F to the margin conditions, liquidity reserves Agreement and Excess Availability;
(ii) the Agent shall have received binding commitments from accepted and executed the Lenders same; (V) unless otherwise agreed by Borrower and Agent and each Additional Lender, Borrower shall have executed and delivered to Agent a Note or Notes payable to the order of each Additional Lender, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (VI) Borrower shall have delivered to Agent an opinion of counsel modified to apply to the Requested Increased increase in the Commitment Amount and that are each Note and Commitment and Acceptance executed and delivered in connection therewith; (VII) Borrower shall pay all required documentary stamp and intangible taxes on terms mutually acceptable the amount of the Facility Increase; (VIII) the Guarantor shall have delivered to Agent a written instrument confirming its consent to the Lenders new Commitments or increases in Commitments (as applicable) and Borrower;
that its Guaranty Agreement continues in full force and effect, enlarged to guaranty the Commitment Amount, as increased by the amount of the Facility Increase; (iiiIX) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as Agent shall have reasonably requested in connection with such new Commitment or increase in a Commitment (as applicable); (X) Borrower shall have established a Borrowing Base pay: (i) to the Agent for the account of the Additional Lenders an upfront fee related to the increased Commitments; and (ii) to the Agent or its affiliate an arrangement fee related to the Facility Increase, and such fees shall be in an amount equal to or greater than be determined by Borrower and Agent, and payable on the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
“Increase Date” (iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion of the Requested Increased Commitment Amount;
as hereinafter defined); and (vXl) no Default or Event of Default shall have occurred that is continuing under this Agreement or would occur exist on the Increase Date (as a result of such increase as determined by the Agent and Lenders;
(vihereinafter defined) payment of increased fees as determined by the Lenders in their reasonable discretion; and
(vii) the Borrower shall deliver an amending agreement after giving effect to the Credit Agreement increase in the Commitment Amount. The form and substance satisfactory of the documents required under clauses (IV) through (IX) above shall be acceptable to Agent in its sole discretion. Agent shall provide written notice to Lenders following any Facility Increase and shall furnish to Lenders, upon request, copies of the Commitment and Acceptance. The effective date of any Facility Increase (“Increase Date”) shall be mutually agreed upon by Borrower, each Additional Lender and Agent.
(C) Nothing contained herein shall constitute or otherwise be deemed to be a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of Borrower or Agent to give or grant any Lender the right to increase its Commitment hereunder. Notwithstanding anything contained to the contrary herein, no Facility Increase Request shall be accepted by Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with if such additional Security, other Documents and supporting certificates, resolutions and opinions acceptance shall cause the outstanding principal balance of the Borrower's Counsel as may be required by Facility (including outstanding Financial and Maintenance Letters of Credit but excluding Performance Letters of Credit) to exceed the Agent and Lenders, each in form and substance satisfactory to Borrowing Base Availability on the Agent and the Lendersmost recently submitted Borrowing Base Certificate.
Appears in 1 contract
Accordion Option. (a) The Borrower may, at any time prior to the Maturity Date, upon providing 45 days prior written notice to the Agent (a "Request for Increase") at any time, request a one-time increase to the aggregate Operating Facility Commitments up to the total amount of $13,000,000 Canadian Dollars (or the Equivalent Amount thereof Capitalized Terms used in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 (the requested amount of the increase shall be referred to herein as, the "Requested Increased Commitment Amount"). The Agent shall forthwith, and in any event within two (2) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or this Section 2 which are not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that defined in the event any Lender does not advise Loan Agreement or defined elsewhere in this Amendment have the Agent within such twenty (20) Banking Day periodmeanings specified therefor in Section 2(g), such Lender shall be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;below.
(b) If unanimous written consent At the request of the Borrowers as provided herein, the Warehousing Commitment Amount may be increased by an amount of up to $50,000,000 (bringing the total Warehousing Commitment Amount to a maximum of $150,000,000), upon the Credit Agent’s determination that the Accordion Conditions have been fully satisfied. In such event, subject to all applicable provisions of the Accordion Loan Documents, the Lenders and the Accordion Lenders shall thereafter make Warehousing Advances to the Borrowers based upon the increased Warehousing Commitment Amount and their respective Commitment Percentages. The obligations of the Lenders provided with respect to a Request for Increase and, pursuant to Section 2.23(a) hereof, one or more Lenders elect not to participate in the Requested Increased Commitment Amount, the Borrower may, with and subject to the prior written approval of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) belowAccordion Lenders shall be several and not joint.
(c) In addition With respect to any increase to the requirements set out in Section 2.23(a) aboveWarehousing Commitment Amount requested by the Borrowers, the Requested Increased Commitment Amount shall be subject to the satisfaction of the following conditions precedentBorrowers hereby acknowledge and agree as follows:
(i) a review by The request for such increase (the Lenders“Accordion Notice”) must (A) be in writing, in their sole discretion, and (B) specify the amount of the margin conditionsrequested increase to the Warehousing Commitment Amount, liquidity reserves which requested increase (x) may not exceed $50,000,000, and Excess Availability;(y) must be at least $15,000,000.
(ii) the Credit Agent shall have received binding commitments from the Lenders in the amount will manage all aspects of the Requested Increased proposed syndication of the requested increase to the Warehousing Commitment Amount, including, without limitation, the final allocations of the increased Warehousing Commitment Amount and that are on terms mutually acceptable to among the Lenders and Borrower;the Accordion Lenders, the respective Commitment Percentages, and the allocation of interest and fees.
(iii) After the Borrower shall have established a Borrowing Base in an amount equal Borrowers’ request to or greater than increase the aggregate Operating Facility Commitments plus the Requested Increased Warehousing Commitment Amount;
(iv) each existing Lender that has agreed to such Request for Increase has received final internal approval to their Rateable Portion , the Borrowers shall cooperate with the Credit Agent in connection with the efforts of the Requested Increased Commitment Amount;
Credit Agent to achieve a Successful Accordion Syndication, to include, among other things: (va) no Default or Event of Default shall have occurred that is continuing under this Agreement or would occur permitting and facilitating direct contact during the syndication between each Borrower’s senior officers, representatives and advisors, on the one hand, and prospective lenders, on the other hand, at such times and places as a result of such increase as determined by the Credit Agent and Lenders;
may reasonably request; (vib) payment of increased fees as determined by the Lenders in their reasonable discretion; and
(vii) the Borrower shall deliver an amending agreement providing to the Credit Agreement in form and substance satisfactory to the Agent and Lendersprospective Accordion Lenders all financial and other information as they may reasonably request, which amendment may containincluding, inter aliawithout limitation, additional or modified terms projections and conditions, together forecasts; and (c) assistance in the preparation of a confidential information memorandum and other marketing materials to be used in connection with such additional Security, other Documents and supporting certificates, resolutions and opinions the proposed syndication of the Borrower's Counsel as requested increased Warehousing Commitment Amount.
(d) The Borrowers may be required by give only one Accordion Notice.
(e) The Credit Agent (i) is only agreeing to use reasonable and customary efforts to achieve a Successful Accordion Syndication, (ii) is not, nor is any Lender, agreeing or committing to increase the amount of its Warehousing Commitment, and (iii) is not guarantying that any efforts to achieve a Successful Accordion Syndication will succeed.
(f) Credit Agent may elect, in its discretion, to abandon its efforts to achieve Successful Accordion Syndication if it determines that such efforts are not likely to succeed. In such event, (i) the Credit Agent and LendersLenders shall have no obligation to increase the existing Warehousing Commitment Amount, each in form and substance satisfactory to (ii) the Credit Agent and the LendersLenders shall have no liability to the Borrowers or any other Person with respect to the efforts undertaken by the Credit Agent in connection therewith or the failure to achieve a Successful Accordion Syndication, and (iii) the Borrowers promptly shall reimburse the Credit Agent for all costs and expenses incurred by the Credit Agent in its syndication efforts.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Walker & Dunlop, Inc.)
Accordion Option. (i) Capitalized terms used in this Section 1.5 which are not defined elsewhere in this Agreement have the meanings specified therefor in Section 1.5(vii), below.
(ii) At the request of the Company as provided herein, the Warehousing Credit Limit may be increased by an aggregate amount of up to $20,000,000 (bringing the total Warehousing Credit Limit to a maximum of $100,000,000), upon the Credit Agent’s determination that the Accordion Conditions have been fully satisfied. In each such event, subject to all applicable provisions of the Accordion Facility Documents (a) The Borrower maythe outstanding Advances shall be allocated among the Lenders (which term shall from and after such time, at any time prior and as used in this Section 1.5, as the context requires, include the Accordion Lenders) by the Credit Agent based upon the increased Warehousing Credit Limit, and the Lenders’ resulting respective Warehousing Commitment Amounts and Warehousing Commitment Percentages, with the Accordion Lenders making advances to the Maturity Datethen existing Lenders as appropriate, upon providing 45 days prior written notice in accordance with customary applicable syndication practices of the Credit Agent, and (b) the Lenders shall thereafter make Advances to the Agent Company based upon the increased Warehousing Credit Limit, and the Lenders’ resulting respective Warehousing Commitment Amounts and Warehousing Commitment Percentages. The obligations of the Lenders shall be several and not joint.
(a "Request for Increase"iii) at any time, request a one-time With respect to each increase to the aggregate Operating Facility Commitments up to Warehousing Credit Limit requested by the total amount of $13,000,000 Canadian Dollars Company, the Company hereby acknowledges and agrees as follows:
(or a) Each request for such increase (an “Accordion Notice”) must (A) be in writing and executed by the Equivalent Amount thereof in United States Dollars). Such Request for Increase shall be for an amount no less than $5,000,000 Company, and (B) specify the requested amount of the requested increase shall be referred to herein asthe Warehousing Credit Limit, the "Requested Increased Commitment Amount"). The Agent shall forthwithwhich requested increase (x) may not exceed $20,000,000, and in any event within two (2y) Banking Days upon receiving the Request for Increase, notify the Lenders of such Request for Increase by the Borrower (such date being the "Increase Notification Date"). Each Lender shall advise the Agent as to whether or not it agrees to such Request for Increase, and any terms and conditions to which its approval is subject, not later than twenty (20) Banking Days after the Increase Notification Date; provided that in the event any Lender does not advise the Agent within such twenty (20) Banking Day period, such Lender shall must be deemed to have elected not to agree to such Request for Increase. Within two (2) Banking Days of the Agent having received from all of the Lenders their respective decision or deemed decision with regard to the Request for Increase, the Agent shall advise the Borrower whether all of the Lenders have agreed to such Request for Increase. For greater certainty, any Request for Increase shall require the unanimous written consent of the Lenders;at least $10,000,000.
(b) If unanimous written consent Credit Agent will manage all aspects of the Lenders provided with respect proposed syndication of the requested increase to a Request for Increase andthe Warehousing Credit Limit, pursuant to Section 2.23(a) hereofincluding, one or more Lenders elect not to participate in the Requested Increased Commitment Amountwithout limitation, the Borrower may, with and subject to the prior written approval allocations of the Agent and Lenders, in each case acting reasonably, include additional lenders (which may be a Lender(s) who has already elected to participate in the Request for Increase) to assist with funding the Requested Increased Commitment Amount. The parties hereto shall enter into a further amending agreement to this Agreement to incorporate the new lenders who participate in funding the Requested Increased Commitment Amount, along with the terms and provisions relating thereto. For clarification, increased Warehousing Credit Limit among the Lenders who participate in the Requested Increased Commitment Amount shall have the same rights and obligations as currently contained in this Agreement, but subject to their respective Ratable Portion after giving effect to the Request for Increase and the amending agreement referred to in Subsection 2.23(c)(vi) belowAccordion Lenders and the allocation of interest and fees.
(c) In addition After the Company’s request to increase the Warehousing Credit Limit, the Company shall cooperate with the Credit Agent in connection with the efforts of the Credit Agent to achieve a Successful Accordion Syndication, to include, among other things: (x) permitting and facilitating direct contact during the syndication between the Company’s senior officers, representatives and advisors, on the one hand, and prospective Accordion Lenders, on the other hand, at such times and places as Credit Agent may reasonably request; (y) providing to the requirements set out Credit Agent and prospective Accordion Lenders all financial and other information as they may reasonably request, including, without limitation, projections and forecasts; and (z) assistance in Section 2.23(a) above, the Requested Increased Commitment Amount shall preparation of a confidential information memorandum and other marketing materials to be subject to used in connection with the satisfaction proposed syndication of the following conditions precedent:requested increased Warehousing Credit Limit.
(iv) The Company may give one or more Accordion Notices; provided that the aggregate increases requested pursuant thereto does not exceed $20,000,000.
(v) The Credit Agent (a) is only agreeing to use reasonable and customary efforts to achieve one or more Successful Accordion Syndications, (b) is not agreeing or committing to increase the amount of its Warehousing Commitment Amount, and (c) is not guarantying that any efforts to achieve one or more Successful Accordion Syndications will succeed.
(vi) Credit Agent may elect, in its discretion, to abandon its efforts to achieve a Successful Accordion Syndication if it determines that such efforts are not likely to succeed. In such event, (i) a review by the LendersCredit Agent shall have no obligation to increase the existing Warehousing Credit Limit, in their sole discretion, of the margin conditions, liquidity reserves and Excess Availability;
(ii) the Credit Agent shall have received binding commitments from the Lenders in the amount of the Requested Increased Commitment Amount and that are on terms mutually acceptable no liability to the Lenders Company or any other Person with respect to the efforts undertaken by the Credit Agent in connection therewith or the failure to achieve a Successful Accordion Syndication, and Borrower;
(iii) the Borrower Company promptly shall have established a Borrowing Base in an amount equal to or greater than reimburse the aggregate Operating Facility Commitments plus the Requested Increased Commitment Amount;
(iv) each existing Lender that has agreed to such Request Credit Agent for Increase has received final internal approval to their Rateable Portion all reasonable out-of the Requested Increased Commitment Amount;
(v) no Default or Event of Default shall have occurred that is continuing under this Agreement or would occur as a result of such increase as determined pocket costs and expenses incurred by the Credit Agent and Lenders;
(vi) payment of increased fees as determined by the Lenders in their reasonable discretion; andits syndication efforts.
(vii) As used herein, the Borrower shall deliver an amending agreement to following terms have the Credit Agreement in form and substance satisfactory to the Agent and Lenders, which amendment may contain, inter alia, additional or modified terms and conditions, together with such additional Security, other Documents and supporting certificates, resolutions and opinions of the Borrower's Counsel as may be required by the Agent and Lenders, each in form and substance satisfactory to the Agent and the Lenders.following meanings:
Appears in 1 contract
Sources: Mortgage Warehousing and Security Agreement (Ares Commercial Real Estate Corp)