Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date"). (ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed). (iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be. (iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d). (v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if: (1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and (2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and (3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Credit Agreement (Stanley Works)
Extension of Commitments. (i) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Commitments are effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Commitment Termination Date (the “Existing Date”) for an additional 364-day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date").
advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (ii) Each Lender acting in its sole and individual discretion any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will use its reasonable efforts not agree to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension). Any Lender that does not so notify In the Administrative Agent that it agrees to such extension at least 20 days before event that, on the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter. In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more banks (any such bank being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of all outstanding Loan Commitments under both Facilities and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be reallocated to the remaining Participating Commitments on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed). The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date.
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") Lenders with the approval of the Administrative Agent and each Swing Line Lender (not to be unreasonably withheldwithheld or delayed), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Agreement pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (dc), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dc).. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (dc) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Commitments are effect, a "Relevant Anniversary"), to request that the Participants extend the then scheduled Commitment Termination Date then in effect (the "Current Termination Existing Date") be extended for an additional 364-day period. Each Participant shall, by notice to the date one year Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such Current Termination Date request, advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such extended date, an "Extended Termination Date"15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter.
(c) In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants ("Consenting Participants") of the amount of the Participating Commitments of the non-extending Participants ("Non-Consenting Participants") and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more banks (any such bank being called a "New Participant"), to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant's Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of all outstanding Loan Commitments under both Facilities and (y) 85% of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the "Continuing Participants"), then (i) the Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant shall become due and payable, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have may, on not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders) not less than 30 days and not more than 60 days prior to any anniversary of the Effective Date (each, a "Relevant an “Effectiveness Anniversary"”), to request that the Termination Lenders extend the Maturity Date and the Commitments for an additional period of one year. Each Lender shall, by notice to the Company and the Administrative Agent given not later than the 20th day after the date of the Administrative Agent’s receipt of the Company’s extension request, advise the Company whether or not it agrees to the requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that has not so advised the Company and the Administrative Agent by such day shall be deemed to have declined to agree to such extension and shall be a Declining Lender. If Lenders constituting the Required Lenders shall have agreed to an extension request, then in effect (the "Current Termination Date") Maturity Date shall, as to the Consenting Lenders, be extended to the date one year after first anniversary of the Maturity Date theretofore in effect. The decision to agree or withhold agreement to any Maturity Date extension shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Current Termination Date Lender prior to giving effect to any such extension (such extended dateMaturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by Declining Lenders, an "Extended Termination together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the applicable Existing Maturity Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right right, pursuant to replaceand in accordance with Section 2.16(b), effective as of the Relevant Anniversary or the Current Termination at any time prior to any Existing Maturity Date, each to replace a Declining Lender with, and add as "Lenders" under this Agreement, one with a Lender or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of other financial institution approved by the Administrative Agent (such approval not to be unreasonably withheld), each conditioned or delayed) that will agree to a request for the extension of which Additional Commitment Lenders the Maturity Date, and any such replacement Lender shall have entered into an agreement for all purposes constitute a Consenting Lender. Notwithstanding the foregoing, no extension of the Maturity Date pursuant to this paragraph shall become effective unless (A) the conditions set forth in form and substance satisfactory Sections 4.02(a) (but without giving effect to the Borrowers parenthetical therein) and 4.02(b) shall be satisfied (with all references in such paragraphs to a Borrowing being deemed to be references to such extension) and the Administrative Agent (an "Additional Commitment Agreement") pursuant shall have received a certificate to which that effect dated such Additional Commitment Lender shall undertake date and executed by a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total Financial Officer of the Commitments of Company, (B) the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers Administrative Agent shall have received an opinion of counsel for the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers Company as to the execution, delivery power and performance by them authority of this Agreement the Company to borrow and the Notes, taking into account perform its obligations hereunder after giving effect to such extension, having been duly authorized by and (C) all necessary corporate action (it being understood fees and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct expenses owing in all material respects only as respect of such date); and
(3) if on extension to the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among Administrative Agent and the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateshall have been paid.
Appears in 1 contract
Sources: Credit Agreement (Kla Tencor Corp)
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension Request Notice Date"), the Borrower may deliver to the Administrative Agent (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension Request") requesting that the LendersRevolving Termination Date be extended for an additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect each Lender (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility and usage fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.13 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ Upon prior written ------------------------ notice (an "Extension Notice") to the Administrative Agent (which shall promptly forward such notice delivered not less ---------------- than 60 days nor more than 90 days prior to the Lenders) prior Initial Termination Date, the Company may elect to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that extend the Termination Date then in effect (to a date no later than 18 months after the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Initial Termination Date, as specified in such Extension Notice (the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d"Extension Period"), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversaryprovided, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause that (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1i) no Default or Event of Default has shall have occurred and is be continuing as of on the date of the request pursuant to clause Extension Notice or the Initial Termination Date, (iii) above and the Relevant Anniversary; and
(2) all representations and warranties contained set forth in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date 5 shall be required to be true and correct in all material respects only as if made on the date of such dateExtension Notice and the Initial Termination Date and (iii) the Administrative Agent shall have received a certificate, dated the Initial Termination Date and signed by a Responsible Officer of each Borrower, confirming compliance with the conditions precedent set forth in clauses (i) and (ii) of this paragraph (a); and.
(3b) Notwithstanding the foregoing, if the Agents determine, in their reasonable judgment after consultation with the Company, on or prior to the Relevant Anniversary date that is 30 days before the commencement of the Extension Period, that the Applicable Margins and/or the Facility Fees are below those that would apply to the Extensions of Credit and the Commitments hereunder if this Agreement were then being reexecuted and the Commitments resyndicated, then the Applicable Margins and the Facility Fees shall be deemed to be amended to be such higher Applicable Margins and Facility Fees as the Agents shall reasonably determine; provided, however, that such amendment shall require the consent of the Company, which consent will not be unreasonably withheld, if it would result in the drawn cost or the Current Termination Date there are Advances outstandingundrawn cost to the Borrowers of the credit facilities provided for hereunder to exceed the LPC Comparable Pricing by more than 12.5 basis points or 5 basis points, appropriate adjustments respectively. Any amendment to the Applicable Margins and/or the Facility Fees that may be made without the consent of the Company as provided for in this paragraph shall be made among evidenced by a written notice thereof by the Lenders Administrative Agent to cause the outstanding Advances Borrowers and the Lenders, and such amendment and the determinations of the Agents pursuant to this subsection 4.17 shall be held ratably by all Lenders conclusive in accordance with their respective Commitments as the absence of each such datemanifest error.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Reebok International LTD)
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Facility Commitment is effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Facility Commitment Termination Date (the “Existing Date”) for an additional 364‑day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date"advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iiia) above, all of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Facility Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Datedate which is 364 days thereafter.
(c) In the event that, on the 15th Business Day after receipt of the notice delivered pursuant to clause (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be deemed to have rejected such offer). In the event that more than one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more financial institutions (any such financial institution being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non‑Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto; provided that, if such Commitments that each New Participant shall be less than 100subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of the US Dollar Equivalent of all outstanding Loan Commitments and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Facility Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to Facility Commitment shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be due and payable to such Non-Consenting Participant on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Facility Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have may, on not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"Lenders), to request that the Termination Lenders extend the Maturity Date then in and the Commitments for an additional period of one year; provided that, after giving effect to any such extension, the Maturity Date as so extended may not be more than five years after the applicable Extension Closing Date. Each Lender shall, by notice to the Company and the Administrative Agent given not later than the 20th day after the date of the Administrative Agent’s receipt of the Company’s extension request, advise the Company whether or not it agrees to the requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that has not so advised the "Current Termination Date") Company and the Administrative Agent by such day shall be deemed to have declined to agree to such extension and shall be a Declining Lender. If Lenders constituting the Required Lenders shall have agreed to an extension request, then, effective as of the Extension Closing Date with respect thereto, the Maturity Date shall, as to the Consenting Lenders, be extended to the date one year after first anniversary of the Maturity Date theretofore in effect. The decision to agree or withhold agreement to any Maturity Date extension shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Current Termination Date Lender prior to giving effect to any such extension (such extended dateMaturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by Declining Lenders, an "Extended Termination together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the applicable Existing Maturity Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right right, pursuant to replaceand in accordance with Section 2.16(b), effective as of the Relevant Anniversary or the Current Termination at any time prior to any Existing Maturity Date, each to replace a Declining Lender with, and add as "Lenders" under this Agreement, one with a Lender or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of other financial institution approved by the Administrative Agent Agent, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld), each conditioned or delayed) that will agree to a request for the extension of which Additional Commitment Lenders shall have entered into an agreement in form the Maturity Date, and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which any such Additional Commitment replacement Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on constitute a Consenting Lender. The Availability Period and the Relevant Anniversary or the Current Termination Date, as the case may be.
Maturity Date (iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, without taking into account consideration any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall Section 2.19), as such terms are used in reference to any Issuing Bank or any Letters of Credit issued by such Issuing Bank or the Swingline Lender or any Swingline Loans made by the Swingline Lender, may not be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of extended without the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as prior written consent of such date); and
(3) if on the Relevant Anniversary Issuing Bank or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.the
Appears in 1 contract
Sources: Credit Agreement (Kla Corp)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders), given not more than ninety (90) days nor less than sixty (60) days prior to the annual anniversary of the Effective Closing Date (eachwhile the Revolving Credit Commitments are in effect, a "Relevant Anniversary"), to request that the Termination Lenders extend the then scheduled Maturity Date then in effect (the "Current Termination Existing Date") be extended for an additional one-year period, provided, however, that the Borrower is not entitled to more than three renewals. Each Lender shall, by notice to the date one year Borrower and the Agent within thirty (30) days after the Borrower gives such Current Termination Date notice, advise the Borrower and the Agent whether or not such Lender consents to the extension request (and any Lender that fails to respond during such extended date, an "Extended Termination Date"thirty (30) day period shall be deemed to have advised the Borrower and the Agent that it will not agree to such extension).
(iib) Each In the event that, on the 30th day after Borrower gives the notice described in subsection (a) above, not all of the Lenders have agreed to extend the Revolving Credit Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of the amount of the Revolving Credit Commitments of the non-consenting Lenders ("NonConsenting Lender") and each of such Consenting Lenders shall, by notice to the Borrower and the Agent given within ten (10) Business Days after receipt of such notice, advise the Agent and the Borrower whether or not such Lender acting in its sole wishes to purchase all or a portion of the Revolving Credit Commitments of the Non-Consenting Lenders (and individual discretion will use its reasonable efforts any Lender which does not respond during such 10-Business Day period shall be deemed to notify have rejected such offer). In the Administrative Agent at least 20 days before the Relevant Anniversary whether it event that more than one Consenting Lender agrees to participate in purchase all or a portion of such extension. Any Lender that does not Revolving Credit Commitments, the Borrower and the Agent shall allocate such Revolving Credit Commitments among such Consenting Lenders so notify as to preserve, to the Administrative Agent that it agrees extent possible, the relative pro-rata shares of the Consenting Lenders of the Revolving Credit Commitments prior to such extension at least 20 days before request. If the Relevant Anniversary (each, a "Declining Lender") shall continue Consenting Lenders do not elect to be a Lender with a Commitment until the earlier assume all of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) Revolving Credit Commitments of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks or other lending institutions (any such bank or lending institution being called a "New Lender"), effective to purchase the Revolving Credit Commitment of any NonConsenting Lender. Such New Lender must meet the requirements of an Eligible Assignee. Each Non-Consenting Lender shall assign its Revolving Credit Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Revolving Credit Commitment in accordance with Section 10.6., in return for payment in full of all principal, interest, and other amounts owed to such Non-Consenting Lender hereunder on or before the Existing Date and, as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent effective date of such Lender) (assignment, shall no longer be a party hereto, provided that each such Person, an "Additional Commitment Lender") with New Lender shall be subject to the approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent . If (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the if) Lenders (including New Lenders) holding Revolving Credit Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than representing at least 100% of the aggregate Revolving Credit Commitments on the date of such extension request shall have agreed in accordance with the terms hereof to such extension (the "Continuing Lenders"), then (i) the Maturity Date shall be extended for one additional year from the Existing Date and (ii) the Commitment of any NonConsenting Lender which has not been assigned to a Consenting Lender or to a New Lender shall terminate (with the result that the amount of the Total Commitments in shall be decreased by the amount of such Revolving Credit Commitment), and all Loans of such Non-Consenting Lenders shall become due and payable, together with all accrued interest thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect immediately prior to the Relevant Anniversary, extension of the Borrowers shall have the right to rescind the request to so extend the Current Termination Maturity Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(vc) Notwithstanding the foregoing, each The effective date of any extension of the Termination Maturity Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as the date on which 100% of the date of the request pursuant Continuing Lenders have agreed to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders extension in accordance with their respective Commitments as of each such datethe terms hereof.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the Lenders), given not more than one hundred twenty (120) days nor less than sixty (60) days prior to the first two anniversaries and second anniversary of the Effective Date (eachExecution Date, a "Relevant Anniversary"), to request that the Lenders extend the then scheduled Commitment Termination Date then in effect (the "Current Termination Existing Date") be extended for ------------- an additional one-year period. Each Lender shall, by notice to the date one year Borrower and the Administrative Agent given within fifteen (15) Business Days after the Borrower gives such Current Termination Date notice, advise the Borrower and the Administrative Agent whether or not such Lender consents to the extension request (and any Lender which does not respond during such extended date, an "Extended Termination Date"15-Business-Day period shall be deemed to have advised the Borrower that it will not agree to such extension).
(iib) Each Lender acting In the event that, on the 15th Business Day after Borrower gives the notice described in its sole subsection (a) above, not all of the Lenders shall have agreed to extend their Revolving Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of ------------------ the amount of the Revolving Commitments of the non-extending Lenders ("Non-Consenting Lenders") and individual discretion will use its reasonable efforts each of such Consenting Lenders shall, by notice ---------------------- to notify the Borrower and the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in given within ten (10) Business Days after receipt of such extension. Any Lender that does not so notify notice, advise the Administrative Agent and Borrower whether or not such Lender wishes to purchase all or a portion of the Revolving Commitments of the Non-Consenting Lenders (and any Lender which does not respond during such 10-Business-Day period shall be deemed to have rejected such offer). In the event that it more than one Consenting Lender agrees to purchase all or a portion of such Revolving Commitments, the Borrower and the Administrative Agent shall allocate such Revolving Commitments among such Consenting Lenders so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Lenders of the Revolving Commitments prior to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue request. If Consenting Lenders do not elect to be a Lender with a Commitment until the earlier assume all of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) Revolving Commitments of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks or other lending institutions (any such bank or lending institution being called a "New Lender"), effective to purchase the Revolving Commitment ---------- of any Non-Consenting Lender. Each Non-Consenting Lender shall assign its Revolving Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Revolving Commitment in accordance with Section 10.4, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Lender hereunder, on or before the Existing Date and, as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent effective date of such Lender) (assignment, shall no longer be a party hereto, provided that each such Person, an "Additional Commitment Lender") with New Lender shall be subject to the approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent . If (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments if) all of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iiiincluding New Lenders) of this subsection (d), shall be more than 50holding Revolving Commitments representing at least 60% of the aggregate amount Aggregate Revolving Commitments on the date of such extension shall have agreed in accordance with the Commitments in effect immediately prior terms hereof to such extension (the Relevant Anniversary"Continuing Lenders"), then (i) the Current Commitment Termination Date shall be extended, effective as extended for one additional year from the Existing Date and (ii) the Commitment of any Non-Consenting Lender which has not been assigned to a Consenting Lender or a New Lender shall terminate (with the result that the amount of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Aggregate Revolving Commitments shall be less than 100decreased by the amount of such Revolving Commitment), and all Loans of such Non-Consenting Lender shall become due and payable, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect to any extension of the Commitment Termination Date.
(c) The effective date of any extension of the Commitment Termination Date shall be the date on which 60% of the aggregate amount Continuing Lenders have agreed to such extension in accordance with the terms of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dSection 2.26(b).
(vd) Notwithstanding The extension by the foregoing, each extension Swing Line Lender of the Termination Date hereunder its Revolving Commitment pursuant to this subsection (d) Section 2.26. shall be effective only if:automatically extend the Swingline Commitment.
(1e) no Default or Event of Default The Borrower understands that this Section has occurred been included in this Agreement for the Borrower's convenience in requesting an extension and is continuing as acknowledges that none of the date of Lenders nor the request pursuant Administrative Agent has promised (either expressly or impliedly), nor has any obligation or commitment whatsoever, to clause (i) above and extend the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Commitment Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateat any time.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed). The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date.
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") Lenders with the approval of the Administrative Agent (not to be unreasonably withheldwithheld or delayed), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Agreement pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (dc), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dc).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (dc) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Extension of Commitments. (i) The Company shall have may, so long as no Default then exists and the rightrepresentations and warranties of the Borrowers contained herein are true and correct at the time of notice, upon no earlier notice to the Administrative Agent not less than 60 days but no later more than 45 days’ 90 days prior to any anniversary of the Amendment Effective Date, propose to extend the Commitment Termination Dates for an additional one-year period measured from the Commitment Termination Dates then in effect; provided that there shall be no more than two such extensions. The Administrative Agent shall promptly notify the Lenders of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Company and the Administrative Agent (which shall promptly forward such notice within 30 days. Subject to the Lenders) prior execution by the Borrowers, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of Exhibit E, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Company and the Administrative Agent shall be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless Lenders having Commitments in an aggregate amount equal to at least 51% of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then Commitments in effect (at the "Current Termination Date") be extended time any such extension is requested shall have elected so to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date")extend their Commitments.
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that which does not so notify the Administrative Agent that it agrees to give such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory notice to the Borrowers Company and the Administrative Agent (an "Additional shall be deemed to have elected not to extend as requested, and the Commitment Agreement") pursuant to which such Additional Commitment of each non-extending Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, terminate on its Commitment shall be in addition Termination Date determined without giving effect to such requested extension. The Company may, in accordance with Section 8.06, designate another bank or other financial institution (which may be, but need not be, an extending Lender) to replace a non-extending Lender. On the date of termination of any Lender’s Commitment hereunder)as contemplated by this paragraph, the respective participations of the other Lenders in all outstanding Letters of Credit and Swingline Loans shall be redetermined on the basis of their respective Commitments after giving effect to such termination, and the participation therein of the Lender whose Commitment is terminated shall terminate; provided that the Borrowers shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit and Swingline Loans within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Loans or, to the extent that such redetermination cannot be effected within the limits of the Commitments even after all outstanding Loans have been prepaid, then the Borrowers shall Cash Collateralize the Letters of Credit to the extent of the excess, and such Additional Commitment Lender shall become a "Lender" for all purposes redetermination and termination of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If participations in outstanding Letters of Credit and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), Swingline Loans shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d)conditioned upon their having done so.
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have On not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ the Borrower may, by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders) not less than 30 days and not more than 90 days prior to any anniversary of the Effective Date (eachdate hereof, a "Relevant Anniversary"), to request that the Termination Lenders extend the Maturity Date then in effect (and the "Current Termination Date") be extended to the date Commitments for an additional period of one year after such Current Termination Date (such extended date, an "Extended Termination Date")year.
(ii) Each Lender acting in its sole shall, by notice to the Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before Agent, given not later than the Relevant Anniversary 20th day after the date of the Agent’s receipt of the Borrower’s extension request, advise the Borrower whether or not it agrees to participate in such extensionthe requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that does has not so notify advised the Administrative Borrower and the Agent that it agrees by such day shall be deemed to have declined to agree to such extension at least 20 days before the Relevant Anniversary (each, and shall be a "Declining Lender") . The decision to agree or withhold agreement to any Maturity Date extension under this Section shall continue to be a Lender with a Commitment until at the earlier sole discretion of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed)each Lender.
(iii) The Company shall have If Lenders constituting the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Required Lenders shall have entered into agreed to an agreement in form and substance satisfactory extension request, then the Maturity Date shall, as to the Borrowers Consenting Lenders, be extended to the first anniversary of the Maturity Date theretofore in effect. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Lender prior to giving effect to any such extension (such Maturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by the Declining Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the Administrative Agent accounts of such Declining Lenders hereunder, shall be due and payable on the Existing Maturity Date, and on the Existing Maturity Date the Borrower shall also make such other prepayments of its Loans as shall be required in order that (an "Additional Commitment Agreement") and it shall be a condition to the effectiveness of the extension of the Commitments of the Consenting Lenders that), after giving effect to the termination of the Commitments of, and all payments to, the Declining Lenders pursuant to which such Additional Commitment Lender this sentence, the sum of the total Revolving Credit Exposures shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on not exceed the Relevant Anniversary or the Current Termination Date, as the case may betotal Commitments.
(iv) If and only if Notwithstanding the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) foregoing provisions of this subsection (db), the Borrower shall be more than 50% have the right, pursuant to and in accordance with the requirements of the aggregate amount of the Commitments in effect immediately Section 10.04, at any time prior to the Relevant AnniversaryExisting Maturity Date, to cause a Declining Lender to assign its rights and obligations hereunder to a Lender or other financial institution reasonably acceptable to the Current Termination Date shall be extended, effective as Agent that will agree to a request for the extension of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Maturity Date, as the case may be, on which and any such Declining replacement Lender is replaced as shall for all purposes constitute a Lender pursuant to clause (iii) of this subsection (d)Consenting Lender.
(v) Notwithstanding the foregoing, each no extension of the Termination Maturity Date hereunder pursuant to this subsection paragraph shall become effective unless (dA) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as on the anniversary of the date hereof that immediately follows the date on which the Borrower delivers the applicable request for extension of the request pursuant Maturity Date, the conditions set forth in subsections (a) and (b) of Section 4.02 shall be satisfied (with all references in such paragraphs to clause (i) above a Loan being deemed to be references to such extension and without giving effect to the Relevant Anniversary; and
(2) all representations and warranties contained parenthetical in Section 4.01 are true 4.02(a)), and correct in all material respects on (B) the Agent shall have received a certificate to that effect dated such date and as executed by a Financial Officer of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateBorrower.
Appears in 1 contract
Extension of Commitments. (ia) The Company Borrower may request by notice (an “Extension Request Notice”) to the Agent (which shall promptly notify the Banks), given during any period beginning on (and including) the day that is 75 days prior to an anniversary of the Effective Date and ending on (and including) the day that is 30 days prior to such anniversary, but in no event later than 30 days prior to the latest Stated Termination Date for any Bank, that the Banks extend their respective Revolving Credit Commitments for an additional year; provided that the Borrower may effectuate an extension pursuant to this Section 2.22 only two times; provided further that the Borrower agrees that it shall not make such request unless on the date of such request it has satisfied all conditions that would be required pursuant to Article III for a Revolving Credit Advance on such date (other than the giving of a Notice of Revolving Credit Borrowing). If a Bank agrees, in its sole and absolute discretion, to so extend its Revolving Credit Commitment, it will give notice to the Agent of its decision to do so within the ten day period following the date of such Extension Request Notice. Promptly following expiration of such ten day period, the Agent will notify the Borrower and the Banks of the Banks from which it has received such a notice agreeing to so renew (“Extending Banks”). Any failure by a Bank to so notify the Agent shall be deemed to be a decision by such Bank to not so extend its Revolving Credit Commitment (each a “Non-Extending Bank”).
(b) If all Banks elect to so extend their respective Revolving Credit Commitments, the Stated Termination Date for each Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank as in effect immediately prior to such extension.
(c) The Borrower shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to on or before the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries anniversary of the Effective Date (each, a "Relevant Anniversary")in respect of which an Extension Request Notice is given, to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, replace each Declining Lender Non-Extending Bank with, and add as "Lenders" “Banks” under this AgreementAgreement in place thereof, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 Eligible Assignees (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"Bank”) with the approval of the Administrative Agent (not to be unreasonably withheld)as provided in Section 8.08, each of which Additional Commitment Lenders Banks shall have entered into an agreement in form Assignment and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Acceptance pursuant to which such Additional Commitment Lender shall Bank shall, effective as of such anniversary, undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender Bank is already a LenderBank, its Revolving Credit Commitment shall be in addition to any other Revolving Credit Commitment of such Lender’s Commitment hereunderBank hereunder on such date), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(ivd) If and only if the total of the Revolving Credit Commitments of the Lenders that have so agreed to extend Extending Banks and the Additional Commitment Banks aggregate 50% or less of the aggregate Revolving Credit Commitments of all Banks, none of the Revolving Credit Commitments (including the Revolving Credit Commitment of any Extending Bank) will be extended and the Stated Termination Date, taking into account any Date for each Bank shall remain unchanged.
(e) If the Revolving Credit Commitments of the Extending Banks and the Additional Commitment increases pursuant to clause (iii) of this subsection (d), shall be more Banks aggregate greater than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be and less than 100% of the aggregate amount Revolving Credit Commitments of all Banks, (i) the Stated Termination Date for each Bank that is an Extending Bank or an Additional Commitment Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank (or in the case of an Additional Commitment Bank that was not already a Bank with a Revolving Credit Commitment, one year following the Stated Termination Date of the Commitments Bank it replaced) as in effect immediately prior to such extension, (ii) the Relevant Anniversary, the Borrowers Stated Termination Date for each Bank that is a Non-Extending Bank shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause remain unchanged and (iii) each Additional Commitment Bank shall thereupon become a “Bank” for all purposes of this subsection (dAgreement with a Revolving Credit Commitment as contemplated by Section 2.22(c).
(vf) Notwithstanding The election by any Bank to renew at any time shall not obligate such Bank to renew at any other time, it being agreed that each election of any Bank to renew or not renew shall be made by such Bank in its sole and absolute discretion and that such discretion shall not be limited by any prior election to renew.
(g) The Borrower agrees to deliver to the foregoing, Agent on each date that any extension of the Termination Date hereunder pursuant to this subsection (d) shall Section 2.22 becomes effective a certificate of a Responsible Officer to the effect that on such date the Borrower has satisfied all conditions that would be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request required pursuant to clause Article III for a Revolving Credit Advance on such date (i) above and other than the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as giving of the date a Notice of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such dateRevolving Credit Borrowing); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Facility Commitment is effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Facility Commitment Termination Date (the “Existing Date”) for an additional 364-day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date"advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Facility Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter.
(c) In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more financial institutions (any such financial institution being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of the US Dollar Equivalent of all outstanding Loan Commitments and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Facility Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to Facility Commitment shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be due and payable to such Non-Consenting Participant on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Facility Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. 3. The Borrower may request by notice (ian “Extension Request Notice”) to the Agent (which shall promptly notify the Banks), given during any period beginning on (and including) the day that is 75 days prior to an anniversary of the Effective Date and ending on (and including) the day that is 30 days prior to such anniversary, but in no event later than 30 days prior to the latest Stated Termination Date for any Bank, that the Banks extend their respective Revolving Credit Commitments for an additional year; provided that the Borrower may effectuate an extension pursuant to this Section 2.22 only two times; provided further that the Borrower agrees that it shall not make such request unless on the date of such request it has satisfied all conditions that would be required pursuant to Article III for a Revolving Credit Advance on such date (other than the giving of a Notice of Revolving Credit Borrowing). If a Bank agrees, in its sole and absolute discretion, to so extend its Revolving Credit Commitment, it will give notice to the Agent of its decision to do so within the ten day period following the date of such Extension Request Notice. Promptly following expiration of such ten day period, the Agent will notify the Borrower and the Banks of the Banks from which it has received such a notice agreeing to so renew (“Extending Banks”). Any failure by a Bank to so notify the Agent shall be deemed to be a decision by such Bank to not so extend its Revolving Credit Commitment (each a “Non-Extending Bank”).
(a) If all Banks elect to so extend their respective Revolving Credit Commitments, the Stated Termination Date for each Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank as in effect immediately prior to such extension.
(b) The Company Borrower shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to on or before the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries anniversary of the Effective Date (each, a "Relevant Anniversary")in respect of which an Extension Request Notice is given, to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, replace each Declining Lender Non-Extending Bank with, and add as "Lenders" “Banks” under this AgreementAgreement in place thereof, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 Eligible Assignees (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"Bank”) with the approval of the Administrative Agent (not to be unreasonably withheld)as provided in Section 8.08, each of which Additional Commitment Lenders Banks shall have entered into an agreement in form Assignment and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Acceptance pursuant to which such Additional Commitment Lender shall Bank shall, effective as of such anniversary, undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender Bank is already a LenderBank, its Revolving Credit Commitment shall be in addition to any other Revolving Credit Commitment of such Lender’s Commitment hereunderBank hereunder on such date), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(ivc) If and only if the total of the Revolving Credit Commitments of the Lenders that have so agreed to extend Extending Banks and the Additional Commitment Banks aggregate 50% or less of the aggregate Revolving Credit Commitments of all Banks, none of the Revolving Credit Commitments (including the Revolving Credit Commitment of any Extending Bank) will be extended and the Stated Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection Date for each Bank shall remain unchanged.
(d), shall be more ) If the Revolving Credit Commitments of the Extending Banks and the Additional Commitment Banks aggregate greater than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be and less than 100% of the aggregate amount Revolving Credit Commitments of all Banks, (i) the Stated Termination Date for each Bank that is an Extending Bank or an Additional Commitment Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank (or in the case of an Additional Commitment Bank that was not already a Bank with a Revolving Credit Commitment, one year following the Stated Termination Date of the Commitments Bank it replaced) as in effect immediately prior to such extension, (ii) the Relevant Anniversary, the Borrowers Stated Termination Date for each Bank that is a Non-Extending Bank shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause remain unchanged and (iii) each Additional Commitment Bank shall thereupon become a “Bank” for all purposes of this subsection (dAgreement with a Revolving Credit Commitment as contemplated by Section 2.22(c).
(ve) Notwithstanding The election by any Bank to renew at any time shall not obligate such Bank to renew at any other time, it being agreed that each election of any Bank to renew or not renew shall be made by such Bank in its sole and absolute discretion and that such discretion shall not be limited by any prior election to renew.
(f) The Borrower agrees to deliver to the foregoing, Agent on each date that any extension of the Termination Date hereunder pursuant to this subsection (d) shall Section 2.22 becomes effective a certificate of a Responsible Officer to the effect that on such date the Borrower has satisfied all conditions that would be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request required pursuant to clause Article III for a Revolving Credit Advance on such date (i) above and other than the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as giving of the date a Notice of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such dateRevolving Credit Borrowing); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have Borrower may, by notice to the right, upon no earlier Administrative Agent in substantially the form of Exhibit “I” hereto given not less than 60 nor more than 90 days but no later than 45 days’ prior to the yearly anniversary date of the Effective Date, request that the then existing Commitment Termination Date (as applicable, the “Existing Commitment Termination Date”) be extended to a date which is one year after the Existing Commitment Termination Date (as applicable, the “New Commitment Termination Date”). The Administrative Agent shall promptly advise each Bank of such request. Each Bank shall consider such request and may elect to extend or not to extend in its sole and independent discretion and may, at its option, conduct a full credit evaluation of the Borrower in considering such request. Each Bank agreeing to such extension (each an “Extending Bank”) shall notify the Administrative Agent thereof (which shall notify the Borrower) on or prior to the date which is 30 days prior to the Existing Commitment Termination Date (or if such 30th day is not a Business Day, then such notice may also be given on the next succeeding Business Day) (the “Consent Date”). Each Bank that determines not to extend the Existing Commitment Termination Date (a “Non-Extending Bank”) shall notify the Administrative Agent (which shall notify the Borrower) of such fact promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination determination (but in any event no later than the Consent Date). Any Bank that does not advise the Administrative Agent on or before the Consent Date (shall be deemed to be a Non-Extending Bank until such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to Bank shall notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent as aforesaid that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed)extension.
(iiib) The Company Borrower shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include at any Lender time with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (which consent will not to be unreasonably withheld) to replace each Non-Extending Bank with one or more other lenders (each for purposes of this Section 2.10, a “Replacement Bank”), each of which Additional Commitment Lenders Replacement Banks shall have entered into either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrowers Borrower and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender Replacement Bank shall undertake a Commitment all or any portion of the Commitment(s) of one or more Non-Extending Banks (if any such Additional Commitment Lender Replacement Bank is a LenderBank, its Commitment shall be in addition to such LenderBank’s Commitment hereunderhereunder on such date), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(ivc) If and only if the total of Banks holding Commitments (not including the Commitments of the Lenders Replacement Banks) that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be aggregate more than 50% of the aggregate amount of the Commitments in effect immediately prior (not including the Commitments of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Relevant AnniversaryExisting Commitment Termination Date, the Current Termination Date shall be extendedthen, effective as of the Relevant AnniversaryExisting Commitment Termination Date, such Existing Commitment Termination Date shall be extended as to the Extended Termination Date; provided thatExtending Banks and any Replacement Bank only to the date so requested by the Borrower (provided, if such Commitments date is not a Business Day, then such Commitment Termination Date as so extended shall be less the immediately preceding Business Day), the Commitment Termination Date shall be the New Commitment Termination Date as to the Extending Banks and any Replacement Bank only and each Replacement Bank shall thereupon become a “Bank” for all purposes of this Agreement.
(d) Notwithstanding the foregoing, the extension of the Existing Commitment Termination Date shall not be effective with respect to any Bank unless:
(i) Banks holding Commitments (not including the Commitments of the Replacement Banks) that aggregate more than 10050% of the aggregate amount of the Commitments (not including the Commitments of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Existing Commitment Termination Date then in effect;
(ii) the Administrative Agent has received the agreement to the extension, in writing, of the Borrower, the Replacement Banks and the Banks (other than the Non-Extending Banks) (which may consist of the Borrower’s request for the extension in substantially the form of Exhibit “I”, the consent of each extending Bank to the extension and the Transfer Supplement or other document executed by each Replacement Bank, if any, pursuant to Section 2.9(b)); and
(iii) the Administrative Agent has received an Officer’s Certificate, dated no later than the Consent Date, to the effect immediately that since the date of the most recent audited financial statements furnished to the Banks pursuant to Section 9.1 prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Consent Date, as there has occurred no material adverse change in the case may bebusiness, on which such Declining Lender is replaced operations, business prospects or financial condition of the Borrower and its Subsidiaries, taken as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing whole; as of the date of said certificate, no Default has occurred or is continuing or will result from extending the request pursuant to clause (i) above and the Relevant AnniversaryCommitment Termination Date; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and , as of the date of said certificate, the request pursuant representations and warranties made by the Borrower in Section 8 (excluding Section 8.4(b)) are true and correct with the same force and effect as if made on and as of such date (unless stated to clause (i) above relate solely to an earlier date, in which case such representations and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date warranties shall be required to be true and correct in all material respects only as of such earlier date); and. Upon fulfillment of all conditions for extension of the Existing Commitment Termination Date, the Administrative Agent shall issue a letter to the Borrower stating that all conditions precedent to the extension of the Existing Commitment Termination Date have been fulfilled and setting forth the New Commitment Termination Date.
(3e) if on If the Relevant Anniversary or the Current Existing Commitment Termination Date there are Advances outstandingis not extended as aforesaid, appropriate adjustments the Borrower shall not be entitled to request any further extensions of the Existing Commitment Termination Date. If the Existing Commitment Termination Date is not extended with respect to a particular Non-Extending Bank pursuant to Section 2.10(a), then the existing Commitment of a Non-Extending Bank shall continue until the Existing Commitment Termination Date (which shall be made among the Lenders Commitment Termination Date for such Bank with respect to cause the outstanding Advances Accommodations Outstanding together with all accrued interest and Fees and other amounts owing to such Bank), at which time the aggregate Commitments of the Banks hereunder shall be held ratably reduced by all Lenders in accordance with their respective Commitments as the Commitment of each such dateNon-Extending Bank, unless a Replacement Bank agrees to undertake the entire Commitment of the Non-Extending Bank, as provided in Section 2.10(a), pursuant to either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrower and the Administrative Agent.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Commitments are effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Commitment Termination Date (the “Existing Date”) for an additional 364-day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date"advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter.
(c) In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more banks (any such bank being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of all outstanding Loan Commitments under both Facilities and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be reallocated to the remaining Participating Commitments on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the rightBorrowers may request, upon no earlier than 60 days but no later than 45 days’ in a notice given as herein provided to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to and each of the first two anniversaries of Lenders at any time prior to the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Maturity Date then in effect (the "Current Termination Date" Existing Maturity Date ") ( provided , that the Borrowers may make only one such request in any calendar year), that the Existing Maturity Date be extended for an additional one year, which notice shall specify a date (which shall be not fewer than 60 and not more than 90 days after the date of such notice) as of which the requested extension is to be effective (the " Effective Date "), and the new Maturity Date (which shall be the date one year after the Existing Maturity Date) to be in effect following such Current Termination extension (the " Requested Maturity Date (such extended date, an "Extended Termination Date").
(ii) . Each Lender Lender, acting in its sole and individual discretion will use its reasonable efforts discretion, shall, not later than a date 30 days prior to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Effective Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to notify the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant of its election to extend or not to extend the Existing Maturity Date with respect to its Commitment. Any Lender which such Additional Commitment Lender shall undertake a not timely notify the Borrowers and the Administrative Agent of its election to extend the Existing Maturity Date shall be deemed to have elected not to extend the Existing Maturity Date with respect to its Commitment (if any such Additional Commitment Lender is a Lender, who timely notifies the Borrowers and the Administrative Agent of an election not to extend its Commitment shall be in addition and any Lender so deemed to have elected not to extend its Commitment being referred to as a " Terminating Lender "). The election of any Lender to agree to such Lender’s Commitment hereunder), and such Additional Commitment extension shall not obligate any other Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may beto agree.
(ivii) If and only if the total of the Lenders holding Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50aggregate at least 66-2/3% of the aggregate amount of the Commitments in effect immediately prior on the Effective Date (including Commitments of all Terminating Lenders on such date) shall have agreed to extend the Relevant AnniversaryExisting Maturity Date, the Current Termination Date shall be extendedthen, effective as of the Relevant AnniversaryEffective Date, (A) the Commitments of the Lenders other than Terminating Lenders (the " Continuing Lenders ") shall, subject to the Extended Termination other provisions of this Agreement, be extended to the Requested Maturity Date specified in the notice from the Borrowers, and as to such Lenders the term "Maturity Date" as used herein shall on and after the Effective Date mean such Requested Maturity Date; provided that, that if such Commitments date is not a Business Day, then such Requested Maturity Date shall be less than 100% the next preceding Business Day and (B) the Commitments of the aggregate amount of Terminating Lenders shall continue until the Commitments in effect immediately prior Existing Maturity Date, and shall then terminate, and as to the Relevant AnniversaryTerminating Lenders, the Borrowers shall have the right to rescind the request to so extend the Current Termination term "Maturity Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date", as the case may beused herein, on which shall continue to mean such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding Existing Maturity Date; provided , however , that notwithstanding the foregoing, each the extension of the Termination Existing Maturity Date hereunder pursuant to this subsection (d) shall not be effective only ifwith respect to any Lender unless:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Senior Competitive Advance and Revolving Credit Facility Agreement (Mbna Corp)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier not more than 60 days 45 days' (but no later than 45 days’ 30 days prior to the then existing Commitment Termination Date) notice prior to the then current Commitment Termination Date to the Administrative Agent (which shall promptly forward notify each Lender of receipt of such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"request), propose to request that extend the Commitment Termination Date for an additional 364 days measured from the Commitment Termination Date then in effect effect. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination to be in the "Current Termination Date") be extended individual and sole discretion of such Lender), by written notice to the date one year after such Current Administrative Agent no earlier than 30 days prior to the then existing Commitment Termination Date (such extended date, an "Extended but in any event no later than 20 days prior to the then existing Commitment Termination Date").
(ii) Each Lender acting . The Administrative Agent will notify the Borrower, in its sole and individual discretion will use its reasonable efforts writing, of the Lenders' responses no later than 15 days prior to notify the then existing Commitment Termination Date. Subject to the execution by the Borrower, the Administrative Agent at least 20 days before and such Lenders of a duly completed Extension Agreement in substantially the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify form of Exhibit E hereto, the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory applicable to the Borrowers Commitment of each Lender so affirmatively notifying the Borrower and the Administrative Agent (an each a "Additional Commitment AgreementCONSENTING LENDER") pursuant to which such Additional shall, effective as at the Commitment Termination Date (the "EXTENSION DATE"), be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall undertake a be extended unless by the date 15 days prior to the Commitment (if any such Additional Commitment Lender is a LenderTermination Date then in effect, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than having at least 50% of the in aggregate amount of the Commitments in effect immediately at the time any such extension is requested shall have elected so to extend their Commitments. Any Lender which does not give such notice to the Borrower and the Administrative Agent by the date 15 days prior to the Relevant AnniversaryCommitment Termination Date then in effect (each, a "NON-CONSENTING LENDER") shall be deemed to have elected not to extend as requested, and the Commitment of each non-extending Lender shall terminate on its Commitment Termination Date determined without giving effect to such requested extension.
(b) If any Lender party to this Agreement shall not elect to extend its Commitment pursuant to subsection (a) of this Section 2.17, the Current Borrower may designate another lender or other lenders (which may be, but need not be, one or more of the Lenders), which at the time agree to become a party to this Agreement (each, an "ASSUMING LENDER").
(c) If less than all of the Lenders consent to any such request pursuant to subsection (a) of this Section 2.17, the Administrative Agent shall promptly so notify the Consenting Lenders, and each Consenting Lender may, in its sole discretion, give written notice to the Administrative Agent not later than 10 days prior to the Commitment Termination Date then in effect of the amount of the Non-Consenting Lenders' Commitments for which it is willing to accept an assignment. If the Consenting Lenders notify the Administrative Agent that they are willing to accept assignments of Commitments in an aggregate amount that exceeds the amount of the Commitments of the Non-Consenting Lenders, such Commitments shall be extendedallocated among the Consenting Lenders willing to accept such assignments in such amounts as are agreed between the Borrower and the Administrative Agent. If after giving effect to the assignments of Commitments described above there remain any Commitments of Non-Consenting Lenders, the Borrower may arrange for one or more Consenting Lenders or other Assignees as Assuming Lenders to assume, effective as of the Relevant AnniversaryExtension Date, any Non-Consenting Lender's Commitment and all of the obligations of such Non-Consenting Lender under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such Non-Consenting Lender; provided, however, that the Extended Termination Date; provided that, if amount of the Commitment of any such Commitments Assuming Lender as a result of such substitution shall in no event be less than 100% of $10,000,000 unless the aggregate amount of the Commitments Commitment of such Non-Consenting Lender is less than $10,000,000, in effect immediately which case such Assuming Lender shall assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to such Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to the effective date of the assignment on, the outstanding Loans, if any, of such Non-Consenting Lender plus (B) any accrued but unpaid fees owing to such Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and indemnities payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable processing and recordation fee required under Section 9.07(c) for such assignment shall have been paid; provided further that such Non-Consenting Lender's rights and obligations under Sections 8.03 and 9.03 shall survive such assignment as to matters occurring prior to the Relevant Anniversarydate of assignment. At least three Domestic Business Days prior to any Extension Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Administrative Agent an Assignment and Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the Borrowers Borrower and the Administrative Agent, and (B) each Non-Consenting Lender being replaced pursuant to this Section 2.17 shall have delivered to the right to rescind Administrative Agent any Note or Notes held by such Non-Consenting Lender. Upon the request to so extend the Current Termination Date. The Borrowers agree to pay in full payment or prepayment of all amounts owing hereunder referred to each Declining Lender on the Relevant Anniversary or the Current Termination Datein clauses (i), as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (ii) and (iii) of this subsection (d).
(v) Notwithstanding the foregoingimmediately preceding sentence, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default such Consenting Lender or Event of Default has occurred and is continuing Assuming Lender, as of the date Extension Date, will be substituted for such Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this Agreement, without any further acknowledgement by or the consent of the request pursuant to clause (i) above other Lenders, and the Relevant Anniversary; and
(2) all representations obligations of each such Non-Consenting Lender hereunder shall, by the provisions hereof, be released and warranties contained in Section 4.01 are true and correct in all material respects on and as of discharged, except for any obligations which accrue prior to the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation payment or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateprepayment.
Appears in 1 contract
Sources: 364 Day Credit Agreement (FMC Corp)
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Facility Commitment is effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Facility Commitment Termination Date (the “Existing Date”) for an additional 364-day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date"advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iiia) above, all of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Facility Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Datedate which is 364 days thereafter.
(c) In the event that, on the 15th Business Day after receipt of the notice delivered pursuant to clause (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be deemed to have rejected such offer). In the event that more than one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative Pro Rata Shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more financial institutions (any such financial institution being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto; provided that, if such Commitments that each New Participant shall be less than 100subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of the US Dollar Equivalent of all outstanding Loan Commitments and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Facility Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to Facility Commitment shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be due and payable to such Non-Consenting Participant on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Facility Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have One time during each period from the right, upon no earlier than 60 date that is 90 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of Anniversary Date to the first two anniversaries of date that is 30 days prior to each such Anniversary Date, the Effective Date Borrowers may, by written notice (eachan "EXTENSION REQUEST") given to the Agent, a "Relevant Anniversary"), to request that the Stated Termination Date be extended. Each such Extension Request shall contemplate an extension of the Stated Termination Date to a date that is one year after the Stated Termination Date then in effect effect.
(b) The Agent shall promptly advise each Bank of its receipt of any Extension Request. Each Bank may, in its sole discretion, consent to a requested extension by giving written notice thereof to the Agent by not later than the date (the "Current Termination DateEXTENSION CONFIRMATION DATE") be extended to the date one year that is 15 days after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the Extension Request, which consent shall be irrevocable when given. Failure on the part of any Bank to respond to an Extension Request by the applicable Extension Confirmation Date shall be deemed to be a denial of such request by such Bank. If all of the Banks shall consent in writing to the requested extension, such request shall be granted with respect to each consenting Bank. Promptly following the opening of business on the first Business Day following the applicable Extension Confirmation Date, the Agent shall notify the Company in writing as to whether the requested extension has been granted (such written notice being an "EXTENSION CONFIRMATION NOTICE") and, if granted, such extension shall become effective upon the issuance of such Extension Confirmation Notice. The Agent shall promptly thereafter provide a copy of such Extension Confirmation Notice to each Bank. If such extension is not granted, the Agent shall give the Company notice of the identity of any non- consenting Banks. If the Company replaces one or more non-consenting Banks pursuant to clause the provisions of SECTION 2.18, and any such replacement Bank becomes a Bank on or before the earlier of (i) above 30 days after the Extension Confirmation Date and (b) 5 days before the Relevant Anniversary; and
(2) all representations applicable Anniversary Date, and warranties contained in Section 4.01 are true and correct in all material respects on and consents to the Extension Request at the time it becomes a Bank, such consent shall be effective retroactively as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateExtension Confirmation Date.
Appears in 1 contract
Sources: Credit Agreement (Ecolab Inc)
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed). The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date.
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") Lenders with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Agreement pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; andFIVE YEAR CREDIT AGREEMENT
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed). The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date.
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 banks or other financial institutions (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"”) with the approval of the Administrative Agent and each Swing Line Lender (not to be unreasonably withheldwithheld or delayed), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance reasonably satisfactory to the Borrowers and the Administrative Agent (an "“Additional Commitment Agreement"”) pursuant to which such Additional Commitment Lender shall AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender▇▇▇▇▇▇’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (dc), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dc).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (dc) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no not earlier than 90 days and not later than 60 days but no later than 45 days’ before the Commitment Termination Date, by notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Commitment Termination Date then in effect (the "Current “Existing Commitment Termination Date"”) be extended to the date one year 364 days after such Current Termination Date (such extended date, an "Extended the Existing Commitment Termination Date"). The Administrative Agent shall promptly notify the Lenders of such request. The Borrower may make this extension request only once.
(iib) Each Lender acting Lender, in its sole and individual discretion will use its reasonable efforts discretion, shall, by notice to notify the Administrative Agent at least 20 given not more than 60 nor less than 50 days before the Relevant Anniversary Existing Commitment Termination Date, advise the Administrative Agent whether it or not such Lender agrees to participate in such extension. Any A Lender that does determines not to so extend its Commitment shall so notify the Administrative Agent that it promptly after making such determination and is herein called a “Non-Extending Lender”. If a Lender does not give timely notice to the Administrative Agent of whether or not such Lender agrees to such extension at least 20 extension, it shall be deemed to be a Non-Extending Lender.
(c) The Administrative Agent shall notify the Borrower of each Lender’s determination on or before the date 45 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Existing Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed)Date.
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(ivd) If and only if (i) the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be their Commitments as herein provided is more than 5075% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Existing Commitment Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect and (ii) immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Existing Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained of the Borrower set forth in Section 4.01 are shall be true and correct in all material respects on and as of the date of the request pursuant to clause (i) above Existing Commitment Termination Date as though made on and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if , then effective on the Relevant Anniversary or the Current Existing Commitment Termination Date there are Advances outstanding, appropriate adjustments the Commitment Termination Date shall be made among extended to the Lenders to cause date 364 days after the outstanding Advances to Existing Commitment Termination Date (or, if such day is not a Business Day, the immediately preceding Business Day) which date shall thereafter be held ratably by all Lenders in accordance with their respective Commitments as the Commitment Table of Contents Termination Date, provided that the Commitment of each such dateNon-Extending Lender shall in any event terminate on the Existing Commitment Termination Date and the Borrower shall pay in full on the Existing Termination Date all amounts payable to each Non-Extending Lender hereunder.
Appears in 1 contract
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"Lenders), given not more than forty-five (45) days nor less than thirty (30) days prior to the then current Commitment Termination Date, request that the Lenders extend the then scheduled Commitment Termination Date then in effect (the "Current Termination Existing -------- Date") be extended for an additional 364-day period. Each Lender shall, by notice to the date one year ---- Borrower and the Administrative Agent given within fifteen (15) Business Days after the Borrower gives such Current Termination Date notice, advise the Borrower and the Administrative Agent whether or not such Lender consents to the extension request (and any Lender which does not respond during such extended date, an "Extended Termination Date"15-Business-Day period shall be deemed to have advised the Borrower that it will not agree to such extension).
(iib) Each Lender acting In the event that, on the 15th Business Day after Borrower gives the notice described in its sole subsection (a) above, not all of the Lenders shall have agreed to extend their Revolving Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of the amount ------------------ of the Revolving Commitments of the non-extending Lenders ("Non-Consenting -------------- Lenders") and individual discretion will use its reasonable efforts each of such Consenting Lenders shall, by notice to notify the Borrower ------- and the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in given within ten (10) Business Days after receipt of such extension. Any Lender that does not so notify notice, advise the Administrative Agent and Borrower whether or not such Lender wishes to purchase all or a portion of the Revolving Commitments of the Non-Consenting Lenders (and any Lender which does not respond during such 10-Business-Day period shall be deemed to have rejected such offer). In the event that it more than one Consenting Lender agrees to purchase all or a portion of such Revolving Commitments, the Borrower and the Administrative Agent shall allocate such Revolving Commitments among such Consenting Lenders so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Lenders of the Revolving Commitments prior to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue request. If Consenting Lenders do not elect to be a Lender with a Commitment until the earlier assume all of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) Revolving Commitments of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks or other lending institutions (any such bank or lending institution being called a "New Lender"), effective to purchase the Revolving Commitment ---------- of any Non-Consenting Lender. Each Non-Consenting Lender shall assign its Revolving Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Revolving Commitment in accordance with Section 10.4, in return for payment in full of all principal, ------------ interest and other amounts owing to such Non-Consenting Lender hereunder, on or before the Existing Date and, as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent effective date of such Lender) (assignment, shall no longer be a party hereto, provided that each such Person, an "Additional Commitment Lender") with New Lender shall be subject to the approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent . If (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments if) all of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iiiincluding New Lenders) of this subsection (d), shall be more than 50holding Revolving Commitments representing at least 60% of the aggregate amount Aggregate Revolving Commitments on the date of such extension shall have agreed in accordance with the Commitments in effect immediately prior terms hereof to such extension (the Relevant Anniversary"Continuing Lenders"), then (i) the Current Commitment Termination Date shall be extended, effective as extended for 364 days from the Existing Date and (ii) the Commitment of any Non-Consenting Lender which has not been assigned to a Consenting Lender or a New Lender shall terminate (with the result that the amount of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Aggregate Revolving Commitments shall be less than 100decreased by the amount of such Revolving Commitment), and all Loans of such Non-Consenting Lender shall become due and payable, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect to any extension of the Commitment Termination Date.
(c) The effective date of any extension of the Commitment Termination Date shall be the then scheduled Existing Date (provided that 60% of -------- the aggregate amount Continuing Lenders have agreed to such extension in accordance with the terms of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dSection 2.24(b)).
(vd) Notwithstanding The Borrower understands that this Section has been included in this Agreement for the foregoing, each Borrower's convenience in requesting an extension and acknowledges that none of the Lenders nor the Administrative Agent has promised (either expressly or impliedly), nor has any obligation or commitment whatsoever, to extend the Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that at any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such datetime.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders), given not more than sixty (60) days nor less than thirty (30) days prior to any anniversary of the Effective Closing Date (eachwhile the Revolving Credit Commitments are in effect, a "Relevant Anniversary"), to request that the Termination Lenders extend the then scheduled Maturity Date then in effect (the "Current Termination Existing Date") be extended for an additional one-year period. Each Lender shall, by notice to the date one year Borrower and the Agent given within fifteen (15) Business Days after the Borrower gives such Current Termination Date notice, advise the Borrower and the Agent whether or not such Lender consents to the extension request (and any Lender which does not respond during such extended date, an "Extended Termination Date"15-Business-Day period shall be deemed to have advised the Borrower that it will not agree to such extension).
(iib) Each In the event that, on the 15th Business Day after Borrower gives the notice described in subsection (a) above, not all of the Lenders shall have agreed to extend their Revolving Credit Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of the amount of the Revolving Credit Commitments of the non-extending Lenders ("Non-Consenting Lenders") and each of such Consenting Lenders shall, by notice to the Borrower and the Agent given within ten (10) Business Days after receipt of such notice, advise the Agent and Borrower whether or not such Lender acting in its sole wishes to purchase all or a portion of the Revolving Credit Commitments of the Non-Consenting Lenders (and individual discretion will use its reasonable efforts any Lender which does not respond during such 10-Business-Day period shall be deemed to notify have rejected such offer). In the Administrative Agent at least 20 days before the Relevant Anniversary whether it event that more than one Consenting Lender agrees to participate in purchase all or a portion of such extension. Any Lender that does not Revolving Credit Commitments, the Borrower and the Agent shall allocate such Revolving Credit Commitments among such Consenting Lenders so notify as to preserve, to the Administrative Agent that it agrees extent possible, the relative pro rata shares of the Consenting Lenders of the Revolving Credit Commitments prior to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue request. If Consenting Lenders do not elect to be a Lender with a Commitment until the earlier assume all of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) Revolving Credit Commitments of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks or other lending institutions (any such bank or lending institution being called a "New Lender"), effective to purchase the Revolving Credit Commitment of any Non-Consenting Lender. Each Non-Consenting Lender shall assign its Revolving Credit Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Revolving Credit Commitment in accordance with Section 11.6., in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Lender hereunder, on or before the Existing Date and, as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent effective date of such Lender) (assignment, shall no longer be a party hereto, provided that each such Person, an "Additional Commitment Lender") with New Lender shall be subject to the approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent . If (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the if) Lenders (including New Lenders) holding Revolving Credit Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50representing at least 60% of the aggregate Revolving Credit Commitments on the date of such extension request shall have agreed in accordance with the terms hereof to such extension (the "Continuing Lenders"), then (i) the Maturity Date shall be extended for one additional year from the Existing Date and (ii) the Commitment of any Non-Consenting Lender which has not been assigned to a Consenting Lender or a New Lender shall terminate (with the result that the amount of the Total Commitments in shall be decreased by the amount of such Revolving Credit Commitment), and all Loans of such Non-Consenting Lender shall become due and payable, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect immediately prior to any extension of the Relevant Anniversary, Maturity Date.
(c) The effective date of any extension of the Current Termination Maturity Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100date on which 60% of the aggregate amount Continuing Lenders have agreed to such extension in accordance with the terms of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dSection 2.5(b).
(vd) Notwithstanding The extension by the foregoing, each extension Swing Line Lender of the Termination Date hereunder its Revolving Credit Commitment pursuant to this subsection (d) Section 2.5. shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of automatically extend the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateSwing Line Commitment.
Appears in 1 contract
Sources: Credit Agreement (Rock Tenn Co)
Extension of Commitments. (i) The Company shall have On not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ the Borrower may, by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders) not less than 30 days and not more than 90 days prior to any anniversary of the Effective Date (eachdate hereof, a "Relevant Anniversary"), to request that the Termination Lenders extend the Maturity Date then in effect (and the "Current Termination Date") be extended to the date Commitments for an additional period of one year after such Current Termination Date (such extended date, an "Extended Termination Date")year.
(ii) Each Lender acting in its sole shall, by notice to the Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before Agent, given not later than the Relevant Anniversary 20th day after the date of the Agent’s receipt of the Borrower’s extension request, advise the Borrower whether or not it agrees to participate in such extensionthe requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that does has not so notify advised the Administrative Borrower and the Agent that it agrees by such day shall be deemed to have declined to agree to such extension at least 20 days before the Relevant Anniversary (each, and shall be a "Declining Lender") . The decision to agree or withhold agreement to any Maturity Date extension under this Section shall continue to be a Lender with a Commitment until at the earlier sole discretion of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed)each Lender.
(iii) The Company shall have If Lenders constituting the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Required Lenders shall have entered into agreed to an agreement in form and substance satisfactory extension request, then the Maturity Date shall, as to the Borrowers Consenting Lenders, be extended to the first anniversary of the Maturity Date theretofore in effect. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Lender prior to giving effect to any such extension (such Maturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by the Declining Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the Administrative Agent accounts of such Declining Lenders hereunder, shall be due and payable on the Existing Maturity Date, and on the Existing Maturity Date the Borrower shall also make such other prepayments of its Loans as shall be required in order that (an "Additional Commitment Agreement") and it shall be a condition to the effectiveness of the extension of the Commitments of the Consenting Lenders that), after giving effect to the termination of the Commitments of, and all payments to, the Declining Lenders pursuant to which such Additional Commitment Lender this sentence, the sum of the total Revolving Credit Exposures shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on not exceed the Relevant Anniversary or the Current Termination Date, as the case may betotal Commitments.
(iv) If and only if Notwithstanding the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) foregoing provisions of this subsection (db), the Borrower shall be more than 50% have the right, pursuant to and in accordance with the requirements of the aggregate amount of the Commitments in effect immediately Section 10.04, at any time prior to the Relevant AnniversaryExisting Maturity Date, to cause a Declining Lender to assign its rights and obligations hereunder to a Lender or other financial institution that will agree to a request for the Current Termination Date shall be extended, effective as extension of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Maturity Date, as the case may be, on which and any such Declining replacement Lender is replaced as shall for all purposes constitute a Lender pursuant to clause (iii) of this subsection (d)Consenting Lender.
(v) Notwithstanding the foregoing, each no extension of the Termination Maturity Date hereunder pursuant to this subsection paragraph shall become effective unless (dA) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as on the anniversary of the date hereof that immediately follows the date on which the Borrower delivers the applicable request for extension of the request pursuant Maturity Date, the conditions set forth in subsections (a) and (b) of Section 4.02 shall be satisfied (with all references in such paragraphs to clause (i) above a Loan being deemed to be references to such extension and without giving effect to the Relevant Anniversary; and
(2) all representations and warranties contained parenthetical in Section 4.01 are true 4.02(a)), and correct in all material respects on (B) the Agent shall have received a certificate to that effect dated such date and as executed by a Financial Officer of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateBorrower.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have may, on not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders) not less than 30 days and not more than 60 days prior to any anniversary of the Effective Date (each, a "Relevant an “Effectiveness Anniversary"”), to request that the Termination Lenders extend the Maturity Date and the Commitments for an additional period of one year. Each Lender shall, by notice to the Company and the Administrative Agent given not later than the 20th day after the date of the Administrative Agent’s receipt of the Company’s extension request, advise the Company whether or not it agrees to the requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that has not so advised the Company and the Administrative Agent by such day shall be deemed to have declined to agree to such extension and shall be a Declining Lender. If Lenders constituting the Required Lenders shall have agreed to an extension request, then in effect (the "Current Termination Date") Maturity Date shall, as to the Consenting Lenders, be extended to the date one year after first anniversary of the Maturity Date theretofore in effect. The decision to agree or withhold agreement to any Maturity Date extension shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Current Termination Date Lender prior to giving effect to any such extension (such extended dateMaturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by Declining Lenders, an "Extended Termination together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the applicable Existing Maturity Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right right, pursuant to replaceand in accordance with Section 2.16(b), effective as of the Relevant Anniversary or the Current Termination at any time prior to any Existing Maturity Date, each to replace a Declining Lender with, and add as "Lenders" under this Agreement, one with a Lender or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of other financial institution approved by the Administrative Agent (such approval not to be unreasonably withheld), each conditioned or delayed) that will agree to a request for the extension of which Additional Commitment Lenders shall have entered into an agreement in form the Maturity Date, and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which any such Additional Commitment replacement Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Dateconstitute a Consenting Lender. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each no extension of the Termination Maturity Date hereunder pursuant to this subsection paragraph shall become effective unless (dA) shall be effective only if:
the conditions set forth in Sections 4.02(a) (1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including but without limitation the representation and warranty of the Borrowers as giving effect to the execution, delivery parenthetical therein) and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.4.02
Appears in 1 contract
Sources: Incremental Facility, Extension and Amendment Agreement (Kla Tencor Corp)
Extension of Commitments. (i) The Company shall have may, so long as no Default then exists and the rightrepresentations and warranties of the Borrowers contained herein are true and correct at the time of notice, upon no earlier notice to the Administrative Agent not less than 60 days but no later more than 45 days’ 90 days prior to any anniversary of the SecondThird Amendment Effective Date, propose to extend the Commitment Termination Dates for an additional one-year period measured from the Commitment Termination Dates then in effect; provided that there shall be no more than two such extensions. The Administrative Agent shall promptly notify the Lenders of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Company and the Administrative Agent (which shall promptly forward such notice within 30 days. Subject to the Lenders) prior execution by the Borrowers, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of Exhibit E, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Company and the Administrative Agent shall be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless Lenders having Commitments in an aggregate amount equal to at least 51% of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then Commitments in effect (at the "Current Termination Date") be extended time any such extension is requested shall have elected so to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date")extend their Commitments.
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that which does not so notify the Administrative Agent that it agrees to give such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory notice to the Borrowers Company and the Administrative Agent (an "Additional shall be deemed to have elected not to extend as requested, and the Commitment Agreement") pursuant to which such Additional Commitment of each non-extending Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, terminate on its Commitment shall be in addition Termination Date determined without giving effect to such requested extension. The Company may, in accordance with Section 8.06, designate another bank or other financial institution (which may be, but need not be, an extending Lender) to replace a non-extending Lender. On the date of termination of any Lender’s Commitment hereunder)as contemplated by this paragraph, the respective participations of the other Lenders in all outstanding Letters of Credit and Swingline Loans shall be redetermined on the basis of their respective Commitments after giving effect to such termination, and the participation therein of the Lender whose Commitment is terminated shall terminate; provided that the Borrowers shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit and Swingline Loans within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Loans or, to the extent that such redetermination cannot be effected within the limits of the Commitments even after all outstanding Loans have been prepaid, then the Borrowers shall Cash Collateralize the Letters of Credit to the extent of the excess, and such Additional Commitment Lender shall become a "Lender" for all purposes redetermination and termination of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If participations in outstanding Letters of Credit and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), Swingline Loans shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d)conditioned upon their having done so.
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Amendment No. 3 and Consent (Duke Energy Ohio, Inc.)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders), given not more than ninety (90) days nor less than sixty (60) days prior to the annual anniversary of the Effective Closing Date (eachwhile the Revolving Credit Commitments are in effect, a "Relevant Anniversary"), to request that the Termination Lenders extend the then scheduled Maturity Date then in effect of the Revolving Credit Facility (the "Current Termination Existing Date") be extended for an additional one-year period, provided, however, that the Borrower is not entitled to more than three renewals. Each Lender shall, by notice to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 within thirty (30) days before after the Relevant Anniversary Borrower gives such notice, advise the Borrower and the Administrative Agent whether it agrees or not such Lender consents to participate in such extension. Any the extension request (and any Lender that does not so notify fails to respond during such thirty (30) day period shall be deemed to have advised the Borrower and the Administrative Agent that it agrees will not agree to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreedextension).
(iiib) The Company In the event that, on the 30th day after Borrower gives the notice described in subsection (a) above, not all of the Lenders have agreed to extend the Revolving Credit Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of the amount of the Revolving Credit Commitments of the non-consenting Lenders ("Non-Consenting Lender") and each of such Consenting Lenders shall, by notice to the Borrower and the Administrative Agent given within ten (10) Business Days after receipt of such notice, advise the Administrative Agent and the Borrower whether or not such Lender wishes to purchase all or a portion of the Revolving Credit Commitments of the Non-Consenting Lenders (and any Lender which does not respond during such 10- Business Day period shall be deemed to have rejected such offer). In the event that more than one Consenting Lender agrees to purchase all or a portion of such Revolving Credit Commitments, the Borrower and the Administrative Agent shall allocate such Revolving Credit Commitments among such Consenting Lenders so as to preserve, to the extent possible, the relative pro-rata shares of the Consenting Lenders of the Revolving Credit Commitments prior to such extension request. If the Consenting Lenders do not elect to assume all of the Revolving Credit Commitments of the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks or other lending institutions (any such bank or lending institution being called a "New Lender"), effective to purchase the Revolving Credit Commitment of any Non-Consenting Lender. Such New Lender must meet the requirements of an Eligible Assignee. Each Non-Consenting Lender shall assign its Revolving Credit Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Revolving Credit Commitment in accordance with Section 10.6., in return for payment in full of all principal, interest, and other amounts owed to such Non-Consenting Lender hereunder on or before the Existing Date and, as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent effective date of such Lender) (assignment, shall no longer be a party hereto, provided that each such Person, an "Additional Commitment Lender") with New Lender shall be subject to the approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent . If (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the if) Lenders (including New Lenders) holding Revolving Credit Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than representing at least 100% of the aggregate Revolving Credit Commitments on the date of such extension request shall have agreed in accordance with the terms hereof to such extension (the "Continuing Lenders"), then (i) the Maturity Date shall be extended for one additional year from the Existing Date and (ii) the Commitment of any Non-Consenting Lender which has not been assigned to a Consenting Lender or to a New Lender shall terminate (with the result that the amount of the Total Commitments in shall be decreased by the amount of such Revolving Credit Commitment), and all Loans of such Non-Consenting Lenders shall become due and payable, together with all accrued interest thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect immediately prior to the Relevant Anniversary, extension of the Borrowers shall have the right to rescind the request to so extend the Current Termination Maturity Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(vc) Notwithstanding the foregoing, each The effective date of any extension of the Termination Maturity Date hereunder shall be the date on which 100% of the Continuing Lenders have agreed to such extension in accordance with the terms hereof.
(d) The extension by the Swing Line Lender of its Revolving Credit Commitment pursuant to this subsection (d) Section 2.12. shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of automatically extend the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateSwing Line Commitment.
Appears in 1 contract
Sources: Credit Agreement (CBRL Group Inc)
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension --------- Request Notice Date"), the Borrower may deliver to the Administrative Agent ------------------- (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension --------- Request") requesting that the LendersRevolving Termination Date be extended for an ------- additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect each Lender ------------------------ (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility and usage fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.13 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that --------
Appears in 1 contract
Extension of Commitments. (i) The Company shall have may, on not more than two occasions during the rightterm of this Agreement, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"Lenders), to request that the Termination Lenders extend the Maturity Date then in and the Commitments for an additional period of one year; provided that, after giving effect to any such extension, the Maturity Date as so extended may not be more than five years after the applicable Extension Closing Date. Each Lender shall, by notice to the Company and the Administrative Agent given not later than the 20th day after the date of the Administrative Agent’s receipt of the Company’s extension request, advise the Company whether or not it agrees to the requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”). Any Lender that has not so advised the "Current Termination Date") Company and the Administrative Agent by such day shall be deemed to have declined to agree to such extension and shall be a Declining Lender. If Lenders constituting the Required Lenders shall have agreed to an extension request, then, effective as of the Extension Closing Date with respect thereto, the Maturity Date shall, as to the Consenting Lenders, be extended to the date one year after first anniversary of the Maturity Date theretofore in effect. The decision to agree or withhold agreement to any Maturity Date extension shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Maturity Date in effect as to such Current Termination Date Lender prior to giving effect to any such extension (such extended dateMaturity Date being called the “Existing Maturity Date”). The principal amount of any outstanding Loans made by Declining Lenders, an "Extended Termination together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the applicable Existing Maturity Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right right, pursuant to replaceand in accordance with Section 2.16(b), effective as of the Relevant Anniversary or the Current Termination at any time prior to any Existing Maturity Date, each to replace a Declining Lender with, and add as "Lenders" under this Agreement, one with a Lender or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of other financial institution approved by the Administrative Agent (such approval not to be unreasonably withheld), each conditioned or delayed) that will agree to a request for the extension of which Additional Commitment Lenders shall have entered into an agreement in form the Maturity Date, and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which any such Additional Commitment replacement Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Dateconstitute a Consenting Lender. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each no extension of the Termination Maturity Date hereunder pursuant to this subsection paragraph shall become effective unless (d) shall be effective only if:
(1) no Default or Event the first date on which such consent of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.the
Appears in 1 contract
Sources: Credit Agreement (Kla Corp)
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension Request Notice Date"), the Borrower may deliver to the Administrative ----------------------------- Agent (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension Request") requesting that the LendersRevolving Termination Date be extended ----------------- for an additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect ------------------------ each Lender (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.13 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that --------
Appears in 1 contract
Extension of Commitments. (i) The Company may, so long as no Default then exists and the representations and warranties of the Borrowers contained herein are true and correct at the time of notice, at any time after the Effective Date but prior to the then existing Commitment Termination Date (the “Existing Commitment Termination Date”), propose to extend the Existing Commitment Termination Date for an additional one year period measured from the Existing Commitment Termination Date; provided that in no event may the Company request more than two extensions of the Commitment Termination Date pursuant to this Section 2.01(b)(i); and provided further that the Commitment Termination Date, after giving effect to any such extension, shall have the right, upon no earlier than 60 days but no not be later than 45 days’ five years after the effective date of such extension. The Administrative Agent shall promptly notify the Lenders of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Company and the Administrative Agent (which shall promptly forward such notice within 30 days. Subject to the Lenders) prior execution by the Borrowers, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of Exhibit E, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Company and the Administrative Agent shall be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless Lenders having Commitments in an aggregate amount equal to at least 51% of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then Commitments in effect (at the "Current Termination Date") be extended time any such extension is requested shall have elected so to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date")extend their Commitments.
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that which does not so notify the Administrative Agent that it agrees to give such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory notice to the Borrowers Company and the Administrative Agent (an "Additional shall be deemed to have elected not to extend as requested, and the Commitment Agreement") pursuant to which such Additional Commitment of each non-extending Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, terminate on its Commitment shall be in addition Termination Date determined without giving effect to such requested extension. The Company may, in accordance with Section 8.05, designate another bank or other financial institution (which may be, but need not be, an extending Lender) to replace a non-extending Lender. On the date of termination of any Lender’s Commitment hereunder)as contemplated by this paragraph, the respective participations of the other Lenders in all outstanding Letters of Credit and Swingline Loans shall be redetermined on the basis of their respective Commitments after giving effect to such termination, and the participation therein of the Lender whose Commitment is terminated shall terminate; provided that the Borrowers shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit and Swingline Loans within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Loans or, to the extent that such redetermination cannot be effected within the limits of the Commitments even after all outstanding Loans have been prepaid, then the Borrowers shall Cash Collateralize the Letters of Credit to the extent of the excess, and such Additional Commitment Lender shall become a "Lender" for all purposes redetermination and termination of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If participations in outstanding Letters of Credit and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), Swingline Loans shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d)conditioned upon their having done so.
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension --------- Request Notice Date"), the Borrower may deliver to the Administrative Agent ------------------- (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension --------- Request") requesting that the LendersRevolving Termination Date be extended for an ------- additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect each Lender ------------------------ (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility and usage fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.14 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that
Appears in 1 contract
Sources: Credit Agreement (Nevada Power Co)
Extension of Commitments. (ia) The Company shall have Borrower may, by notice once a year to the right, upon no earlier Administrative Agent in substantially the form of Exhibit “J” hereto given not less than 60 nor more than 90 days but no later than 45 days’ prior to the yearly anniversary date of the Effective Date, request that the then existing Commitment Termination Date of a Class (as applicable, the “Existing Commitment Termination Date”) be extended to a date which is one year after the Existing Commitment Termination Date of such Class (as applicable, the “New Commitment Termination Date”). The Administrative Agent shall promptly advise each Bank of the applicable Class (the “Extension Class Banks”) of such request. Each Extension Class Bank shall consider such request and may elect to extend or not to extend in its sole and independent discretion and may, at its option, conduct a full credit evaluation of the Borrower in considering such request. If the Borrower requests that both Commitment Termination Dates be extended, each Extension Class Bank shall agree to either extend both of its Commitments or decline to extend both of its Commitments. Each Extension Class Bank agreeing to any such extension (each an “Extending Class Bank”) shall notify the Administrative Agent thereof (which shall notify the Borrower) on or prior to the date which is 30 days prior to the Existing Commitment Termination Date of the applicable Class (or if such 30th day is not a Business Day, then such notice may also be given on the next succeeding Business Day) (the “Consent Date”). Each Extension Class Bank that determines not to extend such Existing Commitment Termination Date (a “Non-Extending Bank”) shall notify the Administrative Agent (which shall notify the Borrower) of such fact promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination determination (but in any event no later than the Consent Date). Any Extension Class Bank that does not advise the Administrative Agent on or before the Consent Date (shall be deemed to be a Non-Extending Bank until such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to Extension Class Bank shall notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent as aforesaid that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed)extension.
(iiib) The Company Borrower shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include at any Lender time with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (which consent will not to be unreasonably withheld) to replace each Non-Extending Bank with one or more other lenders (each for purposes of this Section 2.11, a “Replacement Bank”), each of which Additional Commitment Lenders Replacement Banks shall have entered into either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrowers Borrower and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender Replacement Bank shall undertake a Commitment all or any portion of the Commitments of one or both Classes of one or more Non-Extending Banks (if any such Additional Commitment Lender Replacement Bank is a LenderBank, its Commitment Commitments shall be in addition to such LenderBank’s Commitments hereunder on such date). For greater certainty, if the Borrower requests that a Commitment hereunder)Termination Date be extended and a Bank declines to extend its applicable Commitment, and the Borrower may replace such Additional Commitment Lender shall become a "Lender" for all purposes Bank pursuant to the provisions of this Agreement on Section 2.11(b) with respect to the Relevant Anniversary applicable Commitment as well as its other Commitments, if any. If the Borrower replaces a Non-Extending Bank with respect to both of its Classes of Commitments, the Replacement Bank shall undertake a ratable portion (or all) of the Current Termination Date, as the case may beCommitments for both Classes of such Non-Extending Bank.
(ivc) If and only if Extension Class Banks holding Commitments of the total of applicable Class (not including the Commitments of such Class of the Lenders Replacement Banks) that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be aggregate more than 50% of the aggregate amount of the Commitments in effect immediately prior of such Class (not including the Commitments of such Class of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Relevant AnniversaryExisting Commitment Termination Date, the Current Termination Date shall be extendedthen, effective as of the Relevant AnniversaryExisting Commitment Termination Date, such Existing Commitment Termination Date shall be extended as to the Extended Termination Date; provided thatExtending Class Banks and any Replacement Bank only to the date so requested by the Borrower (provided, if such Commitments date is not a Business Day, then such Commitment Termination Date as so extended shall be less the immediately preceding Business Day), the Commitment Termination Date of the applicable Class shall be the New Commitment Termination Date as to the Extending Class Banks and any Replacement Bank only and each Replacement Bank shall thereupon become a “Bank” for all purposes of this Agreement. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “H” evidencing the revised Commitments.
(d) Notwithstanding the foregoing, the extension of the Existing Commitment Termination Date shall not be effective with respect to any Extension Class Bank unless:
(i) Banks holding Commitments of the applicable Class (not including the Commitments of the Replacement Banks) that aggregate more than 10050% of the aggregate amount of the Commitments of such Class (not including the Commitments of such Class of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Existing Commitment Termination Date then in effect;
(ii) the Administrative Agent has received the agreement to the extension, in writing, of the Borrower, the Replacement Banks and the Extension Class Banks (other than the Non-Extending Banks) (which may consist of the Borrower’s request for the extension in substantially the form of Exhibit “J”, the consent of each extending Extension Class Bank to the extension and the Transfer Supplement or other document executed by each Replacement Bank, if any, pursuant to Section 2.11(b)); and
(iii) the Administrative Agent has received an Officer’s Certificate, dated no later than the Consent Date, to the effect immediately that since the date of the most recent audited financial statements furnished to the Banks pursuant to Section 9.1 prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Consent Date, as there has occurred no material adverse change in the case may bebusiness, on which such Declining Lender is replaced operations, business prospects or financial condition of the Borrower and its Subsidiaries, taken as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing whole; as of the date of said certificate, no Default has occurred or is continuing or will result from extending the request pursuant to clause (i) above and Commitment Termination Date of the Relevant Anniversaryapplicable Class; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and , as of the date of said certificate, the request pursuant representations and warranties made by the Borrower in Section 8 (excluding Section 8.4(b)) are true and correct with the same force and effect as if made on and as of such date (unless stated to clause (i) above relate solely to an earlier date, in which case such representations and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date warranties shall be required to be true and correct in all material respects only as of such earlier date); and. Upon fulfillment of all conditions for extension of the Existing Commitment Termination Date of a Class, the Administrative Agent shall issue a letter to the Borrower stating that all conditions precedent to the extension of the Existing Commitment Termination Date of such Class have been fulfilled and setting forth the New Commitment Termination Date of such Class.
(3e) if on If the Relevant Anniversary or the Current Existing Commitment Termination Date there are Advances outstandingof a Class is not extended as aforesaid, appropriate adjustments the Borrower shall not be entitled to request any further extensions of the Existing Commitment Termination Date of such Class. If the Existing Commitment Termination Date of a Class is not extended with respect to a particular Non-Extending Bank pursuant to Section 2.11(a), then the existing Commitment of the applicable Class of a Non-Extending Bank shall continue until the Existing Commitment Termination Date (which shall be made among the Lenders Commitment Termination Date for the applicable Class for such Bank with respect to cause the outstanding Advances Accommodations Outstanding of such Class together with all accrued interest and Fees and other amounts owing to such Bank with respect to such Class), at which time the aggregate Commitments of such Class of the Banks hereunder shall be held ratably reduced by all Lenders in accordance with their respective Commitments as the Commitment of such Class of each such dateNon-Extending Bank, unless a Replacement Bank agrees to undertake the entire Commitment of such Class of the Non-Extending Bank (or, if a Replacement Bank undertakes only a portion of such Commitment, the aggregate Commitments shall be reduced by the portion not so undertaken by the Replacement Bank), as provided in Section 2.11(b) pursuant to either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrower and the Administrative Agent.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension Request Notice Date"), the Borrower may deliver to the Administrative Agent (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension Request") requesting that the LendersRevolving Termination Date be extended for an additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect each Lender (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.13 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachwhile the Facility Commitment is effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Facility Commitment Termination Date (the “Existing Date”) for an additional 364-day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date").
advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (ii) Each Lender acting in its sole and individual discretion any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will use its reasonable efforts not agree to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension). Any Lender that does not so notify In the Administrative Agent that it agrees to such extension at least 20 days before event that, on the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iiia) above, all of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Facility Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Datedate which is 364 days thereafter. In the event that, on the 15th Business Day after receipt of the notice delivered pursuant to clause (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be deemed to have rejected such offer). In the event that more than one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative Pro Rata Shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more financial institutions (any such financial institution being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto; provided that, if such Commitments that each New Participant shall be less than 100subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of the US Dollar Equivalent of all outstanding Loan Commitments and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Facility Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to Facility Commitment shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be due and payable to such Non-Consenting Participant on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Facility Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Sources: Loan Facility Agreement and Guaranty (Aaron's Company, Inc.)
Extension of Commitments. (i) The Company Each Lender’s Commitment may be extended, if at the time no Event of Default has occurred and is continuing, in the manner set forth in this subsection (c), on a single occasion on any anniversary of the Closing Date (the “Extension Date”) for a period of one year after the date on which the Commitment of such Lender would have been terminated. If the Principal Borrower wishes to request an extension of each Lender’s Commitment, it shall have the right, upon no earlier than 60 days but no later than 45 days’ give notice to that effect to the Administrative Agent (which not less than 45 days and not more than 90 days prior to the Extension Date then in effect, whereupon the Administrative Agent shall promptly forward such notice to the Lenders) prior to notify each of the first two anniversaries Lenders of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) request. Each Lender acting in its sole and individual discretion will use its reasonable best efforts to notify respond to such request, whether affirmatively or negatively, as it may elect in its discretion, within 30 days of such request to the Administrative Agent. If any Lender shall not have responded affirmatively within such 30-day period, such Lender shall be deemed to have rejected the Principal Borrower’s proposal to extend its Commitment, and only the Commitments of those Lenders which have responded affirmatively shall be extended, subject to receipt by the Administrative Agent at least 20 days before of counterparts of an Extension Agreement in substantially the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify form of Exhibit I hereto (the “Extension Agreement”) duly completed and signed by the Principal Borrower, the Administrative Agent that it agrees and all of the Lenders which have responded affirmatively. The Administrative Agent shall provide to the Principal Borrower, no later than 10 days prior to the Extension Date for any such extension at least 20 days before the Relevant Anniversary (eachrequest, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier list of the Current Termination Date or until such Lender is replaced Lenders which have responded affirmatively. The Extension Agreement shall be executed and delivered no later than five days prior to the Extension Date, and no extension of the Commitments pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to legally binding on any party hereto unless and until such Lender’s Commitment hereunder), Extension Agreement is so executed and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the delivered by Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50having at least 51% of the aggregate amount of the Commitments.
(ii) If any Lender rejects, or is deemed to have rejected, the Principal Borrower’s proposal to extend its Commitment (A) this Agreement shall terminate on the Termination Date with respect to such Lender, (B) the Borrower shall pay to such Lender on the Termination Date any amounts due and payable to such Lender on such date and (C) the Principal Borrower may, if it so elects, designate a Person not theretofore a Lender and reasonably acceptable to the Administrative Agent to become a Lender, or agree with an existing Lender that such Lender’s Commitment shall be increased, provided that the aggregate amount of the Commitments following any designation or agreement may not exceed the aggregate amount of the Commitments as in effect immediately prior to the Relevant Anniversary, relevant request. Upon execution and delivery by the Current Termination Date shall be extended, effective as Principal Borrower and such replacement Lender or other Person of an instrument of assumption in form and amount reasonably satisfactory to the Administrative Agent and execution and delivery of the Relevant AnniversaryExtension Agreement pursuant to subsection (c)(i), to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers existing Lender shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary a Commitment as therein set forth or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as other Person shall become a Lender pursuant to clause with a Commitment as therein set forth and all the rights and obligations of a Lender with such a Commitment hereunder.
(iii) The Administrative Agent shall promptly notify the Lenders of this subsection (d).
(v) Notwithstanding the foregoing, effectiveness of each extension of the Termination Date hereunder Commitments pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such datec); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of the Effective Date (eachLenders) given not less than 30 days and not more than 60 days prior to December 26, a "Relevant Anniversary")2002, to request that the Lenders extend the Commitment Termination Date then for an additional period of not more than 364 days as specified in effect (such notice. Any such notice shall specify any fees that the "Current Termination Date") be extended Borrower agrees to pay as consideration for such extension, any changes to the date one year after Applicable Facility Fee Rate, Applicable Margin, and/or Applicable Utilization Fee Rate that will apply during the term of such Current Termination Date (extension and the amendments, if any, to the covenants contained herein or other provisions hereof proposed by the Borrower to be applicable during the term of such extended date, an "Extended Termination Date").
(ii) extension. Each Lender acting in its sole shall, by notice to the Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before given not earlier than the Relevant Anniversary whether it agrees 30th day and not later than the 15th day prior to participate in such extension. Any Lender that does not so notify December 26, 2002, advise the Administrative Agent that and the Borrower whether or not it agrees to such extension at least 20 days before on the Relevant Anniversary (each, a "Declining Lender") shall continue to be a terms set forth in such notice. Any Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it that has not agreed)so advised the Administrative Agent by such day shall be deemed to have declined to agree to such extension.
(iiib) The Company shall have the right If (and only if) Lenders (including any Lenders becoming parties to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on as contemplated by the Relevant Anniversary or the Current Termination Date, as the case may be.
last sentence of paragraph (ivc) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iiibelow) of this subsection (d), shall be holding more than 50% of the Commitments in effect prior to such extension shall have agreed to extend the Commitment Termination Date (each such Lender being called an "Extending Lender", and Lenders not having so agreed being called "Non-Extending Lenders"), then, if the Borrower shall so elect in a notice delivered to the Administrative Agent not earlier than the 15th day and not later than the 10th day prior to December 26, 2002, the Commitment Termination Date shall be extended as to such Extending Lenders for the additional period and on the terms specified in the Borrower's notice provided for under paragraph (a) and, if such terms vary from those contained in this Agreement, the Borrower and the Extending Lenders shall enter into an amendment to this Agreement to be effective as of December 26, 2002, pursuant to which such terms shall be given effect as to the Borrower and the Extending Lenders and, to the extent consistent with Section 10.11, the other Lenders.
(c) If less than all the Lenders consent to any extension request pursuant to paragraph (a), the Administrative Agent shall promptly so notify the Extending Lenders, and each Extending Lender may, in its sole discretion, give written notice to the Administrative Agent not later than 10 days prior to December 26, 2002, of the amount of the Non-Extending Lenders' Commitments, together with the corresponding amount of such Non-Extending Lenders' outstanding Loans and obligations and interests in respect of outstanding L/C Obligations (such corresponding amount of Loans and obligations and interests in respect of outstanding L/C Obligations being collectively referred to as the "Related Credit Extensions"), it is willing to accept and assume. If such Extending Lenders are willing to accept and assume Commitments and Related Credit Extensions in an aggregate amount that exceeds the amount of the Commitments and Related Credit Extensions of the Non-Extending Lenders, the Non-Extending Lenders' Commitments and Related Credit Extensions shall be allocated among Extending Lenders willing to accept and assume such Commitments and Related Credit Extensions in such amounts as shall be agreed between the Borrower and the Administrative Agent, and such Commitments and Related Credit Extensions shall be assigned, accepted and assumed in accordance with the provisions of Section 10.10. If after giving effect immediately to the assignments described above the full amount of the Commitments and Related Credit Extensions of the Non-Extending Lenders would not be assigned, accepted and assumed as set forth above prior to the Relevant AnniversaryDecember 26, 2002, the Current Termination Date shall be extendedBorrower may (i) arrange for one or more Extending Lenders or other assignees eligible to become Lenders hereunder (each, effective as an "Extension Assuming Lender"), to accept and assume the unassigned amounts of the Relevant AnniversaryCommitments and Related Credit Extensions of the Non-Extending Lenders in accordance with Section 10.10 and become parties hereto with all the rights and obligations of Lenders hereunder, or (ii) subject to the Extended Termination Date; provided thatrequirements of paragraph (b) above, if such Commitments shall be less than 100% of reduce the aggregate amount of the Commitments in effect immediately prior to an amount equal to the Relevant Anniversaryaggregate amount of Commitments held by all Extending Lenders and Extension Assuming Lenders all as of December 26, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date2002. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination DateOn December 26, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if2002:
(1i) no Default or Event the Extending Lenders and Extension Assuming Lenders shall pay to the Non-Extending Lenders the principal amount of Default has occurred any outstanding Loans made by such Non-Extending Lenders, and is continuing any outstanding amounts paid by such Non-Extending Lenders pursuant to Section 2.14(d), all as assigned, accepted and assumed in accordance with this paragraph (c), together with any accrued interest thereon as of December 26, 2002;
(ii) any accrued fees and other amounts payable hereunder to any Non-Extending Lender as of December 26, 2002 shall be paid to such Non-Extending Lender by the date of the request pursuant to clause (i) above Borrower or by such Extending Lenders and the Relevant AnniversaryExtension Assuming Lenders, as may be agreed by such parties; and
(2iii) all representations with respect to any such Extension Assuming Lender, the applicable processing and warranties contained recordation fee required under Section 10.10 shall be paid. The Commitment of any Extension Assuming Lender shall in no event be less than $5,000,000 (subject to the fourth sentence of Section 4.01 are true and correct in all material respects on and 10.10(b)) unless the Commitment of a Non-Extending Lender as of December 26, 2002 is less than $5,000,000, in which case such Extension Assuming Lender may accept and assume all of such lesser amount. Any such Non-Extending Lender's rights under Sections 2.13, 3.3, 8.3, 10.3, and 10.13, and its obligations under Section 9.6, shall survive such substitution as to matters occurring on or prior to December 26, 2002, (and if such Non-Extending Lender shall continue to have Loans outstanding after December 26, 2002, shall continue in effect following December 26, 2002). At least three Business Days prior to the proposed effective date of any extension of the request Commitment Termination Date pursuant to clause this Section, (iA) above each Extension Assuming Lender, if any, shall deliver to the Borrower and the Relevant AnniversaryAdministrative Agent an Assignment Agreement or other agreement in a form approved by the Administrative Agent and the Borrower evidencing such Extension Assuming Lender's Commitment and Related Credit Extensions, including without limitation duly executed by such Extension Assuming Lender, such Non-Extending Lender a Commitment and Related Credit Extensions of which is being assigned to and accepted and assumed by such Extension Assuming Lender, the representation Borrower and warranty the Administrative Agent, and (B) each Extending Lender, if any, shall have delivered written confirmation satisfactory to the Borrower and the Administrative Agent as to any increase in the amount of its Commitment and Related Credit Extensions resulting from its acceptance and assumption of all or a portion of the Borrowers Commitments and Related Credit Extensions of the Non-Extending Lenders. As of and following the effective date of any extension made pursuant to this Section, each Extension Assuming Lender shall be a Lender for all purposes of this Agreement.
(d) The decision to agree or withhold agreement to any requested extension of the Commitment Termination Date hereunder shall be at the sole discretion of each Lender. If the Commitment Termination Date shall have been extended as provided in paragraph (b) above, the Commitment of any Non-Extending Lender shall terminate on December 26, 2002, and the term "Commitment Termination Date", as used herein, shall mean, as to the executionRelated Credit Extensions of such Non-Extending Lender (to the extent not assumed pursuant to paragraph (c)), delivery and performance by them of this Agreement and the Notes, taking into account Commitment Termination Date in effect prior to giving effect to such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Transocean Sedco Forex Inc)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders), given not more than sixty (60) days nor less than thirty (30) days prior to any anniversary of the Effective Closing Date (eachwhile the Revolving Credit Commitments are in effect, a "Relevant Anniversary"), to request that the Termination Lenders extend the then scheduled Maturity Date then in effect (the "Current Termination Existing Date") be extended for an additional one-year period. Each Lender shall, by notice to the date one year Borrower and the Agent given within fifteen (15) Business Days after the Borrower gives such Current Termination Date notice, advise the Borrower and the Agent whether or not such Lender consents to the extension request (and any Lender which does not respond during such extended date, an "Extended Termination Date"15-Business-Day period shall be deemed to have advised the Borrower that it will not agree to such extension).
(iib) Each In the event that, on the 15th Business Day after Borrower gives the notice described in subsection (a) above, not all of the Lenders shall have agreed to extend their Revolving Credit Commitments, the Borrower shall notify each of the consenting Lenders ("Consenting Lenders") of the amount of the Revolving Credit Commitments of the non-extending Lenders ("Non-Consenting Lenders") and each of such Consenting Lenders shall, by notice to the Borrower and the Agent given within ten (10) Business Days after receipt of such notice, advise the Agent and Borrower whether or not such Lender acting in its sole wishes to purchase all or a portion of the Revolving Credit Commitments of the Non-Consenting Lenders (and individual discretion will use its reasonable efforts any Lender which does not respond during such 10-Business-Day period shall be deemed to notify have rejected such offer). In the Administrative Agent at least 20 days before the Relevant Anniversary whether it event that more than one Consenting Lender agrees to participate in purchase all or a portion of such extension. Any Lender that does not so notify Revolving Credit
(c) The effective date of any extension of the Administrative Agent that it agrees Maturity Date shall be the date on which 60% of the Continuing Lenders have agreed to such extension at least 20 days before in accordance with the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier terms of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreedSection 2.5(b).
(iiid) The Company shall have extension by the right to replace, effective as Swing Line Lender of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional its Revolving Credit Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) Section 2.5. shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of automatically extend the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateSwing Line Commitment.
Appears in 1 contract
Sources: Credit Agreement (Rock Tenn Co)
Extension of Commitments. (i) The Company may, so long as no Default then exists and the representations and warranties of the Borrowers contained herein are true and correct at the time of notice, at any time after the FirstSecond Amendment Effective Date but prior to the then existing Commitment Termination Date (the “Existing Commitment Termination Date”), propose to extend the Existing Commitment Termination Date for an additional one year period measured from the Existing Commitment Termination Date; provided that in no event may the Company request more than two extensions of the Commitment Termination Date pursuant to this Section 2.01(b)(i); and provided further that the Commitment Termination Date, after giving effect to any such extension, shall have the right, upon no earlier than 60 days but no not be later than 45 days’ five years after the effective date of such extension. The Administrative Agent shall promptly notify the Lenders of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Company and the Administrative Agent (which shall promptly forward such notice within 30 days. Subject to the Lenders) prior execution by the Borrowers, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of Exhibit E, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Company and the Administrative Agent shall be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless Lenders having Commitments in an aggregate amount equal to at least 51% of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then Commitments in effect (at the "Current Termination Date") be extended time any such extension is requested shall have elected so to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date")extend their Commitments.
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that which does not so notify the Administrative Agent that it agrees to give such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory notice to the Borrowers Company and the Administrative Agent (an "Additional shall be deemed to have elected not to extend as requested, and the Commitment Agreement") pursuant to which such Additional Commitment of each non-extending Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, terminate on its Commitment Termination Date determined without giving effect to such requested extension. The Company may, in accordance with Section 8.05, designate another bank or other financial institution (which may be, but need not be, an extending Lender) to replace a non-extending Lender. On the date of termination of any L▇▇▇▇▇’s Commitment as contemplated by this paragraph, the respective participations of the other Lenders in all outstanding Letters of Credit and Swingline Loans shall be in addition redetermined on the basis of their respective Commitments after giving effect to such Lender’s termination, and the participation therein of the Lender whose Commitment hereunder)is terminated shall terminate; provided that the Borrowers shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit and Swingline Loans within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Loans or, to the extent that such redetermination cannot be effected within the limits of the Commitments even after all outstanding Loans have been prepaid, then the Borrowers shall Cash Collateralize the Letters of Credit to the extent of the excess, and such Additional Commitment Lender shall become a "Lender" for all purposes redetermination and termination of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If participations in outstanding Letters of Credit and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), Swingline Loans shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d)conditioned upon their having done so.
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Amendment No. 2 and Consent (Duke Energy Florida, LLC)
Extension of Commitments. (ia) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ Borrower may request by notice (an “Extension Request Notice”) to the Administrative Agent (which shall promptly forward notify the Lenders), given during any period beginning on (and including) the day that is 60 days prior to an anniversary of the Closing Date and ending on (and including) the day that is 45 days prior to such notice anniversary, but in no event later than 30 days prior to the Lenders) prior latest Stated Maturity Date for any Lender, that the Lenders extend their respective Commitments for an additional year; provided that the Borrower may effectuate an extension pursuant to each this Section 2.15 only two times; provided further that the Borrower agrees that, if a Default or Event of Default has occurred and is continuing on the date of any such request, such request shall be accompanied by a statement of a Responsible Officer of the first two anniversaries Borrower stating that a Default or Event of the Effective Date (eachDefault has occurred and is continuing on such date. If a Lender agrees, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion absolute discretion, so to extend its Commitment, it will use give notice to the Administrative Agent of its reasonable efforts decision to do so within the ten day period following the date of such Extension Request Notice. Promptly following expiration of such ten day period, the Administrative Agent will notify the Borrower and the Lenders of the Lenders from which it has received such a notice agreeing so to renew (“Extending Lenders”). Any failure by a Lender so to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue be deemed to be a Lender with a Commitment until the earlier of the Current Termination Date or until decision by such Lender is replaced pursuant not to clause extend its Commitment (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreedeach a “Non-Extending Lender”).
(iiib) If all Lenders elect so to extend their respective Commitments, the Stated Maturity Date for each Lender shall automatically become the date that is one year following the Stated Maturity Date for such Lender as in effect immediately prior to such extension.
(c) The Company Borrower shall have the right to replaceright, effective as on or before the anniversary of the Relevant Anniversary or the Current Termination DateEffective Date in respect of which an Extension Request Notice is given, to replace each Declining Non-Extending Lender with, and add as "“Lenders" ” under this AgreementAgreement in place thereof, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 Eligible Assignees (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"”) with the approval of the Administrative Agent (not to be unreasonably withheld)as provided in Section 10.06, each of which Additional Commitment Lenders shall have entered into an agreement in form Assignment and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Acceptance pursuant to which such Additional Commitment Lender shall shall, effective as of such anniversary, undertake a Commitment (and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to any other Commitment of such Lender hereunder on such date).
(d) If the Commitments of the Extending Lenders and the Additional Commitment Lenders aggregate 50% or less of the Aggregate Commitments, none of the Commitments (including the Commitment of any Extending Lender’s Commitment hereunder)) will be extended, and such the Stated Maturity Date for each Lender shall remain unchanged.
(e) If the Commitments of the Extending Lenders and the Additional Commitment Lenders aggregate greater than 50% and less than 100% of the Aggregate Commitments, (i) the Stated Maturity Date for each Lender that is an Extending Lender or an Additional Commitment Lender shall automatically become the date that is one year following the Stated Maturity Date for such Lender (or in the case of an Additional Commitment Lender that was not already a Lender, one year following the Stated Maturity Date of the Lender it replaced) as in effect immediately prior to such extension, (ii) the Stated Maturity Date for each Lender that is a Non-Extending Lender shall remain unchanged and (iii) each Additional Commitment Lender shall thereupon become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, with a Commitment as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dcontemplated by Section 2.15(c).
(vf) Notwithstanding The election by any Lender to extend at any time shall not obligate such Lender to extend at any other time, it being agreed that each election of any Lender to extend or not extend shall be made by such Lender in its sole and absolute discretion and that such discretion shall not be limited by any prior election to extend.
(g) The Borrower agrees to deliver to the foregoing, Administrative Agent on each date that any extension of the Termination Date hereunder pursuant to this subsection (d) shall be Section 2.15 becomes effective only if:
(1) no Default or Event a certificate of Default has occurred and is continuing as an officer of the Borrower to the effect that on such date of the request Borrower has satisfied all conditions that would be required pursuant to clause Article IV for a Revolving Borrowing on such date (i) above and other than the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as giving of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such dateRevolving Loan Notice); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Credit Agreement (Bj Services Co)
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed).. The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 banks or other financial institutions (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"”) with the approval of the Administrative Agent and each Swing Line Lender (not to be unreasonably withheldwithheld or delayed), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance reasonably satisfactory to the Borrowers and the Administrative Agent (an "“Additional Commitment Agreement"”) pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender▇▇▇▇▇▇’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (dc), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dc).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (dc) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the NotesAgreement, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of the Effective Date (eachLenders) given not less than 30 days and not more than 60 days prior to December 24, a "Relevant Anniversary")2003, to request that the Lenders extend the Commitment Termination Date then for an additional period of not more than 364 days as specified in effect (such notice. Any such notice shall specify any fees that the "Current Termination Date") be extended Borrower agrees to pay as consideration for such extension, any changes to the date one year after Applicable Facility Fee Rate, Applicable Margin, and/or Applicable Utilization Fee Rate that will apply during the term of such Current Termination Date (extension and the amendments, if any, to the covenants contained herein or other provisions hereof proposed by the Borrower to be applicable during the term of such extended date, an "Extended Termination Date").
(ii) extension. Each Lender acting in its sole shall, by notice to the Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before given not earlier than the Relevant Anniversary whether it agrees 30th day and not later than the 15th day prior to participate in such extension. Any Lender that does not so notify December 24, 2003, advise the Administrative Agent that and the Borrower whether or not it agrees to such extension at least 20 days before on the Relevant Anniversary (each, a "Declining Lender") shall continue to be a terms set forth in such notice. Any Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it that has not agreed)so advised the Administrative Agent by such day shall be deemed to have declined to agree to such extension.
(iiib) The Company shall have the right If (and only if) Lenders (including any Lenders becoming parties to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on as contemplated by the Relevant Anniversary or the Current Termination Date, as the case may be.
last sentence of paragraph (ivc) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iiibelow) of this subsection (d), shall be holding more than 50% of the Commitments in effect prior to such extension shall have agreed to extend the Commitment Termination Date (each such Lender being called an "Extending Lender", and Lenders not having so agreed being called "Non-Extending Lenders"), then, if the Borrower shall so elect in a notice delivered to the Administrative Agent not earlier than the 15th day and not later than the 10th day prior to December 24, 2003, the Commitment Termination Date shall be extended as to such Extending Lenders for the additional period and on the terms specified in the Borrower's notice provided for under paragraph (a) and, if such terms vary from those contained in this Agreement, the Borrower and the Extending Lenders shall enter into an amendment to this Agreement to be effective as of December 24, 2003, pursuant to which such terms shall be given effect as to the Borrower and the Extending Lenders and, to the extent consistent with Section 10.11, the other Lenders.
(c) If less than all the Lenders consent to any extension request pursuant to paragraph (a), the Administrative Agent shall promptly so notify the Extending Lenders, and each Extending Lender may, in its sole discretion, give written notice to the Administrative Agent not later than 10 days prior to December 24, 2003, of the amount of the Non-Extending Lenders' Commitments, together with the corresponding amount of such Non-Extending Lenders' outstanding Loans and obligations and interests in respect of outstanding L/C Obligations (such corresponding amount of Loans and obligations and interests in respect of outstanding L/C Obligations being collectively referred to as the "Related Credit Extensions"), it is willing to accept and assume. If such Extending Lenders are willing to accept and assume Commitments and Related Credit Extensions in an aggregate amount that exceeds the amount of the Commitments and Related Credit Extensions of the Non-Extending Lenders, the Non-Extending Lenders' Commitments and Related Credit Extensions shall be allocated among Extending Lenders willing to accept and assume such Commitments and Related Credit Extensions in such amounts as shall be agreed between the Borrower and the Administrative Agent, and such Commitments and Related Credit Extensions shall be assigned, accepted and assumed in accordance with the provisions of Section 10.10. If after giving effect immediately to the assignments described above the full amount of the Commitments and Related Credit Extensions of the Non-Extending Lenders would not be assigned, accepted and assumed as set forth above prior to the Relevant AnniversaryDecember 24, 2003, the Current Termination Date shall be extendedBorrower may (i) arrange for one or more Extending Lenders or other assignees eligible to become Lenders hereunder (each, effective as an "Extension Assuming Lender"), to accept and assume the unassigned amounts of the Relevant AnniversaryCommitments and Related Credit Extensions of the Non-Extending Lenders in accordance with Section 10.10 and become parties hereto with all the rights and obligations of Lenders hereunder, or (ii) subject to the Extended Termination Date; provided thatrequirements of paragraph (b) above, if such Commitments shall be less than 100% of reduce the aggregate amount of the Commitments to an amount equal to the aggregate amount of Commitments held by all Extending Lenders and Extension Assuming Lenders all as of December 24, 2003. On December 24, 2003:
(i) the Extending Lenders and Extension Assuming Lenders shall pay to the Non-Extending Lenders the principal amount of any outstanding Loans made by such Non-Extending Lenders, and any outstanding amounts paid by such Non-Extending Lenders pursuant to Section 2.14(d), all as assigned, accepted and assumed in accordance with this paragraph (c), together with any accrued interest thereon as of December 24, 2003;
(ii) any accrued fees and other amounts payable hereunder to any Non-Extending Lender as of December 24, 2003 shall be paid to such Non-Extending Lender by the Borrower or by such Extending Lenders and Extension Assuming Lenders, as may be agreed by such parties; and
(iii) with respect to any such Extension Assuming Lender, the applicable processing and recordation fee required under Section 10.10 shall be paid. The Commitment of any Extension Assuming Lender shall in no event be less than $5,000,000 (subject to the fourth sentence of Section 10.10(b)) unless the Commitment of a Non-Extending Lender as of December 24, 2003 is less than $5,000,000, in which case such Extension Assuming Lender may accept and assume all of such lesser amount. Any such Non-Extending Lender's rights under Sections 2.13, 3.3, 8.3, 10.3, and 10.13, and its obligations under Section 9.6, shall survive such substitution as to matters occurring on or prior to December 24, 2003, (and if such Non-Extending Lender shall continue to have Loans outstanding after December 24, 2003, shall continue in effect immediately following December 24, 2003). At least three Business Days prior to the Relevant Anniversaryproposed effective date of any extension of the Commitment Termination Date pursuant to this Section, (A) each Extension Assuming Lender, if any, shall deliver to the Borrower and the Administrative Agent an Assignment Agreement or other agreement in a form approved by the Administrative Agent and the Borrower evidencing such Extension Assuming Lender's Commitment and Related Credit Extensions, duly executed by such Extension Assuming Lender, such Non-Extending Lender a Commitment and Related Credit Extensions of which is being assigned to and accepted and assumed by such Extension Assuming Lender, the Borrowers Borrower and the Administrative Agent, and (B) each Extending Lender, if any, shall have delivered written confirmation satisfactory to the right Borrower and the Administrative Agent as to rescind any increase in the request amount of its Commitment and Related Credit Extensions resulting from its acceptance and assumption of all or a portion of the Commitments and Related Credit Extensions of the Non-Extending Lenders. As of and following the effective date of any extension made pursuant to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to this Section, each Declining Extension Assuming Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as shall be a Lender pursuant to clause (iii) for all purposes of this subsection (d)Agreement.
(vd) The decision to agree or withhold agreement to any requested extension of the Commitment Termination Date hereunder shall be at the sole discretion of each Lender. If the Commitment Termination Date shall have been extended as provided in paragraph (b) above, the Commitment of any Non-Extending Lender shall terminate on December 24, 2003, and the term "Commitment Termination Date", as used herein, shall mean, as to the Related Credit Extensions of such Non-Extending Lender (to the extent not assumed pursuant to paragraph (c)), the Commitment Termination Date in effect prior to giving effect to such extension.
(e) Notwithstanding the foregoing, each no extension of the Commitment Termination Date hereunder pursuant to shall become effective under this subsection Section unless (di) the conditions set forth in paragraphs (b) and (c) of Section 4.2 shall be effective only if:
(1) no Default satisfied on December 24, 2003, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the President or Event of Default has occurred and is continuing as a Vice President of the date Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the request pursuant to Lenders (other than any Non-Extending Lenders)) documents consistent with those delivered under clause (i) above and the Relevant Anniversary; andof Section 4.1
(2a) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery corporate power and performance by them authority of this Agreement and the Notes, taking into account Borrower to borrow hereunder after giving effect to such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") Lenders with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Agreement pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company Borrower may request by notice (an "Extension Request Notice") to the Agent (which shall promptly notify the Banks), given during any period beginning on (and including) the day that is 75 days prior to an anniversary of the Effective Date and ending on (and including) the day that is 30 days prior to such anniversary, but in no event later than 30 days prior to the latest Stated Termination Date for any Bank, that the Banks extend their respective Revolving Credit Commitments for an additional year; provided that the Borrower may effectuate an extension pursuant to this Section 2.21 only two times; provided further that the Borrower agrees that it shall not make such request unless on the date of such request it has satisfied all conditions that would be required pursuant to Article III
for a Revolving Credit Advance on such date (other than the giving of a Notice of Revolving Credit Borrowing). If a Bank agrees, in its sole and absolute discretion, to so extend its Revolving Credit Commitment, it will give notice to the Agent of its decision to do so within the ten day period following the date of such Extension Request Notice. Promptly following expiration of such ten day period, the Agent will notify the Borrower and the Banks of the Banks from which it has received such a notice agreeing to so renew ("Extending Banks"). Any failure by a Bank to so notify the Agent shall be deemed to be a decision by such Bank to not so extend its Revolving Credit Commitment (each a "Non-Extending Bank").
(b) If all Banks elect to so extend their respective Revolving Credit Commitments, the Stated Termination Date for each Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank as in effect immediately prior to such extension.
(c) The Borrower shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to on or before the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries anniversary of the Effective Date (each, a "Relevant Anniversary")in respect of which an Extension Request Notice is given, to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, replace each Declining Lender Non-Extending Bank with, and add as "LendersBanks" under this AgreementAgreement in place thereof, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 Eligible Assignees (which may include any Lender with the consent of such Lender) (each such Personeach, an "Additional Commitment LenderBank") with the approval of the Administrative Agent (not to be unreasonably withheld)as provided in Section 8.08, each of which Additional Commitment Lenders Banks shall have entered into an agreement in form Assignment and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Acceptance pursuant to which such Additional Commitment Lender shall Bank shall, effective as of such anniversary, undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender Bank is already a LenderBank, its Revolving Credit Commitment shall be in addition to any other Revolving Credit Commitment of such Lender’s Commitment hereunderBank hereunder on such date), .
(d) If the Revolving Credit Commitments of the Extending Banks and such the Additional Commitment Lender Banks aggregate 50% or less of the aggregate Revolving Credit Commitments of all Banks, none of the Revolving Credit Commitments (including the Revolving Credit Commitment of any Extending Bank) will be extended and the Stated Termination Date for each Bank shall remain unchanged.
(e) If the Revolving Credit Commitments of the Extending Banks and the Additional Commitment Banks aggregate greater than 50% and less than 100% of the aggregate Revolving Credit Commitments of all Banks, (i) the Stated Termination Date for each Bank that is an Extending Bank or an Additional Commitment Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank (or in the case of an Additional Commitment Bank that was not already a Bank with a Revolving Credit Commitment, one year following the Stated Termination Date of the Bank it replaced) as in effect immediately prior to such extension, (ii) the Stated Termination Date for each Bank that is a Non-Extending Bank shall remain unchanged and (iii) each Additional Commitment Bank shall thereupon become a "LenderBank" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, with a Revolving Credit Commitment as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dcontemplated by Section 2.21(c).
(vf) Notwithstanding The election by any Bank to renew at any time shall not obligate such Bank to renew at any other time, it being agreed that each election of any Bank to renew or not renew shall be made by such Bank in its sole and absolute discretion and that such discretion shall not be limited by any prior election to renew.
(g) The Borrower agrees to deliver to the foregoing, Agent on each date that any extension of the Termination Date hereunder pursuant to this subsection (d) shall Section 2.21 becomes effective a certificate of a Responsible Officer to the effect that on such date the Borrower has satisfied all conditions that would be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request required pursuant to clause Article III for a Revolving Credit Advance on such date (i) above and other than the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as giving of the date a Notice of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such dateRevolving Credit Borrowing); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Facility Commitment is effect, a "Relevant Anniversary"), to request that the Termination Date Participants extend the then in effect (the "Current Termination Date") be extended to the date one year after such Current scheduled Facility Commitment Termination Date (the “Existing Date”) for an additional 364‑day period. Each Participant shall, by notice to the Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such extended daterequest, an "Extended Termination Date"advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such 15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Facility Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter.
(c) In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants (“Consenting Participants”) of the aggregate Participating Commitment Amounts of the non-extending Participants (“Non-Consenting Participants”) and such Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more financial institutions (any such financial institution being called a “New Participant”) to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant’s Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non‑Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of the US Dollar Equivalent of all outstanding Loan Commitments and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the “Continuing Participants”), then (i) the Facility Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to Facility Commitment shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be due and payable to such Non-Consenting Participant on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Facility Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no Not earlier than the date which is 60 days (but no not later than 45 30 days’ notice ) prior to the then existing Revolving Termination Date (the "Extension Request Notice Date"), the Borrower may deliver to the Administrative ----------------------------- Agent (which shall promptly forward such transmit the same to each Lender) a notice to (an "Extension Request") requesting that the LendersRevolving Termination Date be extended ----------------- for an additional 364 days commencing on the then existing Revolving Termination Date. Not earlier than the date which is 30 days (but not later than 20 days) prior to each of the first two anniversaries of the Effective then existing Revolving Termination Date (eachthe period from the Extension Request Notice Date to such date, a the "Relevant AnniversaryExtension Request Period"), to request that the Termination Date then in effect ------------------------ each Lender (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual absolute discretion will use its reasonable efforts to and after conducting an internal credit review of the Borrower) shall notify the Administrative Agent at least 20 days before of such Lender's willingness or unwillingness to so extend the Relevant Anniversary whether it agrees to participate in such extensionRevolving Termination Date. Any Lender that does not which shall fail to so notify the Administrative Agent that it agrees to within such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition deemed to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed declined to extend the Revolving Termination Date, taking into account any Commitment increases pursuant . If Lenders having Commitments totaling an amount equal to clause (iii) of this subsection (d), shall be more than 50at least 51% of the aggregate amount of the Commitments then in effect immediately prior agree to such extension by notice to the Relevant AnniversaryAdministrative Agent, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant then (A) subject to clause (iii) of this subsection (d).
(v) Notwithstanding below, the foregoing, each extension Revolving Termination Date shall be extended for an additional 364 days with respect to the Commitments of the Lenders so agreeing, and (B) subject to Section 2.06(f) hereof, the Commitment of each Lender not so agreeing shall expire on the then expiring Revolving Termination Date and the Borrower shall pay or prepay on such day without premium or penalty all principal of such Lender's Loans together with accrued interest thereon and all accrued facility and usage fees and other amounts payable to such Lender hereunder (including, without limitation, amounts payable pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing Section 2.14 hereof as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as result of such datepayment or prepayment); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstandingprovided, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.however, that
Appears in 1 contract
Extension of Commitments. (ia) The Company Borrower may, by notice once a year to the Administrative Agent in substantially the form of Exhibit “J” hereto, request that the then existing Commitment Termination Date of a Class (as applicable, the “Existing Commitment Termination Date”) be extended to a date which is one year after the Existing Commitment Termination Date of such Class (as applicable, the “New Commitment Termination Date”). The Administrative Agent shall have promptly, but in any event within three (3) Business Days, advise each Bank of the rightapplicable Class (the “Extension Class Banks”) of such request. Each Extension Class Bank shall consider such request and may elect to extend or not to extend in its sole and independent discretion and may, upon no earlier than 60 at its option, conduct a full credit evaluation of the Borrower in considering such request. If the Borrower requests that both Commitment Termination Dates be extended, each Extension Class Bank shall agree to either extend both of its Commitments or decline to extend both of its Commitments. Each Extension Class Bank agreeing to any such extension (each an “Extending Class Bank”) shall notify the Administrative Agent thereof (which shall notify the Borrower) on or prior to the date which is 30 days but no later than 45 days’ after the date the Administrative Agent has advised the Extension Class Banks of such request to extend the Existing Commitment Termination Date of the applicable Class (or if such 30th day is not a Business Day, then such notice may also be given on the next succeeding Business Day) (the “Consent Date”). Each Extension Class Bank that determines not to extend such Existing Commitment Termination Date (a “Non-Extending Bank”) shall notify the Administrative Agent (which shall notify the Borrower) of such fact promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "Relevant Anniversary"), to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date determination (such extended date, an "Extended Termination but in any event no later than the Consent Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify . Any Extension Class Bank that does not advise the Administrative Agent at least 20 days on or before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") Consent Date shall continue be deemed to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).Non-Extending Bank
(iiib) The Company Borrower shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include at any Lender time with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (which consent will not to be unreasonably withheld) to replace each Non-Extending Bank with one or more other lenders (each for purposes of this Section 2.11, a “Replacement Bank”), each of which Additional Commitment Lenders Replacement Banks shall have entered into either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrowers Borrower and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender Replacement Bank shall undertake a Commitment all or any portion of the Commitments of one or both Classes of one or more Non-Extending Banks (if any such Additional Commitment Lender Replacement Bank is a LenderBank, its Commitment Commitments shall be in addition to such LenderBank’s Commitments hereunder on such date). For greater certainty, if the Borrower requests that a Commitment hereunder)Termination Date be extended and a Bank declines to extend its applicable Commitment, and the Borrower may replace such Additional Commitment Lender shall become a "Lender" for all purposes Bank pursuant to the provisions of this Agreement on Section 2.11(b) with respect to the Relevant Anniversary applicable Commitment as well as its other Commitments, if any. If the Borrower replaces a Non-Extending Bank with respect to both of its Classes of Commitments, the Replacement Bank shall undertake a ratable portion (or all) of the Current Termination Date, as the case may beCommitments for both Classes of such Non-Extending Bank.
(ivc) If and only if Extension Class Banks holding Commitments of the total of applicable Class (not including the Commitments of such Class of the Lenders Replacement Banks) that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be aggregate more than 50% of the aggregate amount of the Commitments in effect immediately prior of such Class (not including the Commitments of such Class of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Relevant AnniversaryExisting Commitment Termination Date, the Current Termination Date shall be extendedthen, effective as of the Relevant AnniversaryExisting Commitment Termination Date, such Existing Commitment Termination Date shall be extended as to the Extended Termination Date; provided thatExtending Class Banks and any Replacement Bank only to the date so requested by the Borrower (provided, if such Commitments date is not a Business Day, then such Commitment Termination Date as so extended shall be less the immediately preceding Business Day), the Commitment Termination Date of the applicable Class shall be the New Commitment Termination Date as to the Extending Class Banks and any Replacement Bank only and each Replacement Bank shall thereupon become a “Bank” for all purposes of this Agreement. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “H” evidencing the revised Commitments.
(d) Notwithstanding the foregoing, the extension of the Existing Commitment Termination Date shall not be effective with respect to any Extension Class Bank unless:
(i) Banks holding Commitments of the applicable Class (not including the Commitments of the Replacement Banks) that aggregate more than 10050% of the aggregate amount of the Commitments of such Class (not including the Commitments of such Class of the Replacement Banks) shall, by the Consent Date, have agreed to extend the Existing Commitment Termination Date then in effect;
(ii) the Administrative Agent has received the agreement to the extension, in writing, of the Borrower, the Replacement Banks and the Extension Class Banks (other than the Non-Extending Banks) (which may consist of the Borrower’s request for the extension in substantially the form of Exhibit “J”, the consent of each extending Extension Class Bank to the extension and the Transfer Supplement or other document executed by each Replacement Bank, if any, pursuant to Section 2.11(b)); and
(iii) the Administrative Agent has received an Officer’s Certificate, dated no later than the Consent Date, to the effect immediately that since the date of the most recent audited financial statements furnished to the Banks pursuant to Section 9.1 prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Consent Date, as there has occurred no material adverse change in the case may bebusiness, on which such Declining Lender is replaced operations, business prospects or financial condition of the Borrower and its Subsidiaries, taken as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing whole; as of the date of said certificate, no Default has occurred or is continuing or will result from extending the request pursuant to clause (i) above and Commitment Termination Date of the Relevant Anniversaryapplicable Class; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and , as of the date of said certificate, the request pursuant representations and warranties made by the Borrower in Section 8 (excluding Section 8.4(b)) are true and correct with the same force and effect as if made on and as of such date (unless stated to clause (i) above relate solely to an earlier date, in which case such representations and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date warranties shall be required to be true and correct in all material respects only as of such earlier date); and. Upon fulfillment of all conditions for extension of the Existing Commitment Termination Date of a Class, the Administrative Agent shall issue a letter to the Borrower stating that all conditions precedent to the extension of the Existing Commitment Termination Date of such Class have been fulfilled and setting forth the New Commitment Termination Date of such Class.
(3e) if on If the Relevant Anniversary or the Current Existing Commitment Termination Date there are Advances outstandingof a Class is not extended as aforesaid, appropriate adjustments the Borrower shall not be entitled to request any further extensions of the Existing Commitment Termination Date of such Class. If the Existing Commitment Termination Date of a Class is not extended with respect to a particular Non-Extending Bank pursuant to Section 2.11(a), then the existing Commitment of the applicable Class of a Non-Extending Bank shall continue until the Existing Commitment Termination Date (which shall be made among the Lenders Commitment Termination Date for the applicable Class for such Bank with respect to cause the outstanding Advances Accommodations Outstanding of such Class together with all accrued interest and Fees and other amounts owing to such Bank with respect to such Class), at which time the aggregate Commitments of such Class of the Banks hereunder shall be held ratably reduced by the Commitment of such Class of each such Non-Extending Bank, unless a Replacement Bank agrees to undertake the entire Commitment of such Class of the Non-Extending Bank (or, if a Replacement Bank undertakes only a portion of such Commitment, the aggregate Commitments shall be reduced by the portion not so undertaken by the Replacement Bank), as provided in Section 2.11(b) pursuant to either a Transfer Supplement substantially in the form of Exhibit “C” hereto or an agreement otherwise in form and substance satisfactory to the Borrower and the Administrative Agent. Upon the occurrence of a Commitment Termination Date of a Class with respect to a Non-Extending Bank, the Accommodations Outstanding of such Class together with all Lenders accrued interest and Fees and other amounts owing, in each case, to such Bank with respect to such Class shall be paid by the Borrower in accordance with their respective Commitments as Section 4.1, unless a Replacement Bank has agreed to undertake the entire Commitment of each such dateClass of the Non-Extending Bank (or, if a Replacement Bank has agreed to undertake only a portion of such Commitment, the portion of the Accommodations Outstanding of such Class together with all accrued interest and Fees and other amounts owing to such Bank with respect to such Class not undertaken by the Replacement Bank shall be paid by the Borrower in accordance with Section 4.1).
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries of Lenders) given not less than 30 days and not more than 60 days prior to the Effective Date (each, a "Relevant Anniversary"), to request that the Commitment Termination Date then in effect (effect, request that the "Current Lenders extend the Commitment Termination Date") be extended Date for an additional period of not more than 364 days as specified in such notice. Any such notice shall specify any fees that the Borrower agrees to pay as consideration for such extension, any changes to the date one year after Applicable Facility Fee Rate, Applicable Margin, and/or Applicable Utilization Fee Rate that will apply during the term of such Current Termination Date (extension and the amendments, if any, to the covenants contained herein or other provisions hereof proposed by the Borrower to be applicable during the term of such extended date, an "Extended Termination Date").
(ii) extension. Each Lender acting in its sole shall, by notice to the Borrower and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before given not earlier than the Relevant Anniversary whether it agrees 30th day and not later than the 15th day prior to participate the Commitment Termination Date then in such extension. Any Lender that does not so notify effect, advise the Administrative Agent that and the Borrower whether or not it agrees to such extension at least 20 days before on the Relevant Anniversary (each, a "Declining Lender") shall continue to be a terms set forth in such notice. Any Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it that has not agreed)so advised the Administrative Agent by such day shall be deemed to have declined to agree to such extension.
(iiib) The Company shall have the right If (and only if) Lenders (including any Lenders becoming parties to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on as contemplated by the Relevant Anniversary or the Current Termination Date, as the case may be.
last sentence of paragraph (ivc) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iiibelow) of this subsection (d), shall be holding more than 50% of the Commitments in effect prior to such extension shall have agreed to extend the Commitment Termination Date (each such Lender being called an "Extending Lender", and Lenders not having so agreed being called "Non-Extending Lenders"), then, if the Borrower shall so elect in a notice delivered to the Administrative Agent not earlier than the 15th day and not later than the 10th day prior to the Commitment Termination Date then in effect, the Commitment Termination Date shall be extended as to such Extending Lenders for the additional period and on the terms specified in the Borrower's notice provided for under paragraph (a) and, if such terms vary from those contained in this Agreement, the Borrower and the Extending Lenders shall enter into an amendment to this Agreement to be effective as of the Commitment Termination Date in effect prior to such extension pursuant to which such terms shall be given effect as to the Borrower and the Extending Lenders and, to the extent consistent with Section 10.11, the other Lenders.
(c) If less than all the Lenders consent to any extension request pursuant to paragraph (a), the Administrative Agent shall promptly so notify the Extending Lenders, and each Extending Lender may, in its sole discretion, give written notice to the Administrative Agent not later than 10 days prior to the Commitment Termination Date in effect prior to giving effect to the extension provided for in paragraph (b) (the "Existing Commitment Termination Date") of the amount of the Non-Extending Lenders' Commitments, together with the corresponding amount of such Non-Extending Lenders' outstanding Loans and obligations and interests in respect of outstanding L/C Obligations (such corresponding amount of Loans and obligations and interests in respect of outstanding L/C Obligations being collectively referred to as the "Related Credit Extensions"), it is willing to accept and assume. If such Extending Lenders are willing to accept and assume Commitments and Related Credit Extensions in an aggregate amount that exceeds the amount of the Commitments and Related Credit Extensions of the Non-Extending Lenders, the Non-Extending Lenders' Commitments and Related Credit Extensions shall be allocated among Extending Lenders willing to accept and assume such Commitments and Related Credit Extensions in such amounts as shall be agreed between the Borrower and the Administrative Agent, and such Commitments and Related Credit Extensions shall be assigned, accepted and assumed in accordance with the provisions of Section 10.10. If after giving effect immediately to the assignments described above the full amount of the Commitments and Related Credit Extensions of the Non- Extending Lenders would not be assigned, accepted and assumed as set forth above prior to the Relevant AnniversaryCommitment Termination Date, the Current Termination Date shall be extendedBorrower may (i) arrange for one or more Extending Lenders or other assignees eligible to become Lenders hereunder (each, effective as an "Extension Assuming Lender"), to accept and assume the unassigned amounts of the Relevant AnniversaryCommitments and Related Credit Extensions of the Non- Extending Lenders in accordance with Section 10.10 and become parties hereto with all the rights and obligations of Lenders hereunder, or (ii) subject to the Extended Termination Date; provided thatrequirements of paragraph (b) above, if such Commitments shall be less than 100% of reduce the aggregate amount of the Commitments in effect immediately prior to an amount equal to the Relevant Anniversary, aggregate amount of Commitments held by all Extending Lenders and Extension Assuming Lenders all as of the Borrowers shall have the right to rescind the request to so extend the Current Existing Commitment Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on On the Relevant Anniversary or the Current Existing Commitment Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1i) no Default or Event the Extending Lenders and Extension Assuming Lenders shall pay to the Non-Extending Lenders the principal amount of Default has occurred any outstanding Loans made by such Non-Extending Lenders, and is continuing any outstanding amounts paid by such Non-Extending Lenders pursuant to Section 2.13(d), all as assigned, accepted and assumed in accordance with this paragraph (c), together with any accrued interest thereon as of the date Existing Commitment Termination Date;
(ii) any accrued fees and other amounts payable hereunder to any Non-Extending Lender as of the request pursuant Existing Commitment Termination Date shall be paid to clause (i) above such Non-Extending Lender by the Borrower or by such Extending Lenders and the Relevant AnniversaryExtension Assuming Lenders, as may be agreed by such parties; and
(2iii) all representations with respect to any such Extension Assuming Lender, the applicable processing and warranties contained recordation fee required under Section 10.10 shall be paid. The Commitment of any Extension Assuming Lender shall in no event be less than $5,000,000 (subject to the fourth sentence of Section 4.01 are true and correct in all material respects on and 10.10(b)) unless the Commitment of a Non-Extending Lender as of the Existing Termination Date is less than $5,000,000, in which case such Extension Assuming Lender may accept and assume all of such lesser amount. Any such Non-Extending Lender's rights under Sections 2.12, 3.3, 8.3, 10.3, and 10.13, and its obligations under Section 9.6, shall survive such substitution as to matters occurring on or prior to the Existing Commitment Termination Date (and if such Non-Extending Lender shall continue to have Loans outstanding after the Existing Commitment Termination Date, shall continue in effect following the Existing Commitment Termination Date). At least three Business Days prior to the proposed effective date of any extension of the request Commitment Termination Date pursuant to clause this Section, (iA) above each Extension Assuming Lender, if any, shall deliver to the Borrower and the Relevant AnniversaryAdministrative Agent an Assignment Agreement or other agreement in a form approved by the Administrative Agent and the Borrower evidencing such Extension Assuming Lender's Commitment and Related Credit Extensions, including without limitation duly executed by such Extension Assuming Lender, such Non-Extending Lender a Commitment and Related Credit Extensions of which is being assigned to and accepted and assumed by such Extension Assuming Lender, the representation Borrower and warranty the Administrative Agent, and (B) each Extending Lender, if any, shall have delivered written confirmation satisfactory to the Borrower and the Administrative Agent as to any increase in the amount of its Commitment and Related Credit Extensions resulting from its acceptance and assumption of all or a portion of the Borrowers Commitments and Related Credit Extensions of the Non-Extending Lenders. As of and following the effective date of any extension made pursuant to this Section, each Extension Assuming Lender shall be a Lender for all purposes of this Agreement.
(d) The decision to agree or withhold agreement to any requested extension of the Commitment Termination Date hereunder shall be at the sole discretion of each Lender. If the Commitment Termination Date shall have been extended as provided in paragraph (b) above, the Commitment of any Non-Extending Lender shall terminate on the Existing Commitment Termination Date, and the term "Maturity Date", as used herein, shall mean, as to the executionRelated Credit Extensions of such Non-Extending Lender (to the extent not assumed pursuant to paragraph (c)), delivery and performance by them of this Agreement and the Notes, taking into account Maturity Date in effect prior to giving effect to such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Transocean Sedco Forex Inc)
Extension of Commitments. (ia) The Company shall have the rightSponsor may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent Servicer (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Participants), given not more than sixty (60) days prior to any anniversary of the Effective Date (eachdate of this Agreement while the Commitments are effect, a "Relevant Anniversary"), to request that the Participants extend the then scheduled Commitment Termination Date then in effect (the "Current Termination DateEXISTING DATE") be extended for an additional 364-day period. Each Participant shall, by notice to the date one year Sponsor and the Servicer given within fifteen (15) Business Days after receipt of such Current Termination Date request, advise the Sponsor and the Servicer whether or not such Participant consents to the extension request (and any Participant which does not respond during such extended date, an "Extended Termination Date"15-day period shall be deemed to have advised the Sponsor and the Servicer that it will not agree to such extension).
(iib) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify In the Administrative Agent at least 20 days before event that, on the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier 15th Business Day after receipt of the Current Termination Date or until such Lender is replaced notice delivered pursuant to clause (iii) of this subsection (da) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company above, all of the Participants shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the approval of the Administrative Agent (not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversarytheir respective Participating Commitments, the Current Commitment Termination Date shall be deemed to have been extended, effective as of the Relevant AnniversaryExisting Date, to the Extended Termination Date; provided date which is 364 days thereafter.
(c) In the event that, if on the 15th Business Day after receipt of the notice delivered pursuant to subsection (a) above, all of the Participants shall not have agreed to extend their respective Participating Commitments, the Sponsor and the Servicer shall notify the consenting Participants ("CONSENTING PARTICIPANTS") of the aggregate Participating Commitment Amounts of the non-extending Participants ("NON-CONSENTING PARTICIPANTS") and such 36 Consenting Participants shall, by notice to the Sponsor and the Servicer given within ten (10) Business Days after receipt of such notice, advise the Servicer and Sponsor whether or not such Participant wishes to purchase all or a portion of the Participating Commitments of the Non-Consenting Participants (and any Participant which does not respond during such 10-Business Day period shall be less deemed to have rejected such offer). In the event that more than 100one Consenting Participant agrees to purchase all or a portion of such Participating Commitments, the Sponsor and the Servicer shall allocate such Participating Commitments among such Consenting Participants so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Participants of the Participating Commitments prior to such extension request. If Consenting Participants do not elect to assume all of the Participating Commitments of the Non-Consenting Participants, the Sponsor shall have the right, subject to the terms and conditions of Section 15.6, to arrange for one or more banks (any such bank being called a "NEW PARTICIPANT") to purchase the Participating Commitment of any Non-Consenting Participant. Each Non-Consenting Participant shall assign its Participating Commitment and its Participant's Interest outstanding hereunder to the Consenting Participant or New Participant purchasing such Participating Commitment in accordance with Section 15.6, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Participant hereunder, on or before the Existing Date and, as of the effective date of such assignment, shall no longer be a party hereto, provided that each New Participant shall be subject to the approval of the Servicer (which approval shall not be unreasonably withheld). If (and only if) Participants (including New Participants) holding Participating Commitments representing at least an amount equal to the greater of (x) the sum of all outstanding Loan Commitments under both Facilities and (y) 66 2/3 % of the aggregate Participating Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the "Continuing Participants"), then (i) the Commitment Termination Date shall be extended for an additional 364-day period and (ii) the Participating Commitment of any Non-Consenting Participant which has not been assigned to a Consenting Participant or a New Participant shall terminate (with the result that the amount of the Commitments in effect immediately prior to shall be decreased proportionately by the Relevant Anniversaryamount of such Participating Commitment), the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full and all amounts owing hereunder to each Declining Lender such Non-Consenting Participant, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Participant hereunder, shall be reallocated to the remaining Participating Commitments on the Relevant Anniversary or the Current Termination Date, as the case may be, on which Existing Date applicable to such Declining Lender is replaced as a Lender pursuant Participant without giving effect to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each any extension of the Commitment Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateDate.
Appears in 1 contract
Extension of Commitments. (ia) The Company shall have the rightBorrower may, upon no earlier than 60 days but no later than 45 days’ by written notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior deliver a copy to each of the first two anniversaries Lenders), given not more than sixty (60) days prior to any anniversary of the Effective Closing Date (eachwhile the Commitments are in effect, a "Relevant Anniversary"), to request that the Termination Lenders extend the then scheduled Maturity Date then in effect (the "Current Termination Existing Date") be extended for an additional one-year period. Each Lender shall, by notice to the date one year Borrower and the Administrative Agent given within fifteen (15) Business Days after receipt of such Current Termination Date request, advise the Borrower whether or not such Lender consents to the extension request (and any Lender which does not respond during such extended date, an "Extended Termination Date"15-day period shall be deemed to have advised the Borrower that it will not agree to such extension).
(iib) Each Lender acting in its sole In the event that, on the 15th Business Day receipt of the notice delivered pursuant to subsection (a) above, not all of the Lenders shall have agreed to extend their Commitments, the Borrower shall notify the consenting Lenders ("Consenting Lenders") of the amount of the Commitments of the non-extending Lenders ("Non-Consenting Lenders") and individual discretion will use its reasonable efforts such Consenting Lenders shall, by notice to notify the Borrower and the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in given within ten (10) Business Days after receipt of such extension. Any Lender that does not so notify notice, advise the Administrative Agent and Borrower whether or not such Lender wishes to purchase all or a portion of the Commitments of the Non-Consenting Lenders (and any Lender which does not respond during such 10-Business Day period shall be deemed to have rejected such offer). In the event that it more than one Consenting Lender agrees to purchase all or a portion of such Commitments, the Borrower and the Managing Agents shall allocate such Commitments among such Consenting Lenders so as to preserve, to the extent possible, the relative pro rata shares of the Consenting Lenders of the Commitments prior to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue request. If Consenting Lenders do not elect to be a Lender with a Commitment until the earlier assume all of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) Commitments of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company the Non-Consenting Lenders, the Borrower shall have the right to replacearrange for one or more banks (any such bank being called an "New Lender"), effective to purchase the Commitment of any Non-Consenting Lender. Each Non-Consenting Lender shall assign its Commitment and the Loans outstanding hereunder to the Consenting Lender or New Lender purchasing such Commitment in accordance with Section 8.5, in return for payment in full of all principal, interest and other amounts owing to such Non-Consenting Lender hereunder, on or before the Existing Date and, as of the Relevant Anniversary effective date of such assignment, shall no longer be a party hereto, provided that each New Lender shall be subject to the approval of the Managing Agents (which approval shall not be unreasonably withheld). If (and only if) Lenders (including New Lenders) holding Commitments representing at least 75% of the aggregate Commitments on the date of such extension request shall have agreed to such extension by the Existing Date (the "Continuing Lenders"), then (i) the Maturity Date shall be extended for an additional one year and (ii) the Commitment of any Non-Consenting Lender which has not been assigned to a Consenting Lender or a New Lender shall terminate (with the Current Termination result that the amount of the aggregate Commitments shall be decreased by the amount of such Commitment), and all Loans of such Non-Consenting Lender shall become due and payable, together with all interest accrued thereon and all other amounts owed to such Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender without giving effect to any extension of the Maturity Date.
(c) In the event that the Maturity Date of the Commitments has been extended as set forth above but any Non-Consenting Lender remains party to this Agreement with Commitments expiring on the Existing Date, each Declining Lender withthe Borrower may, and add as "Lenders" under this Agreementat any time prior to the ninetieth day following the effective date of such extension, arrange for one or more Persons eligible banks to participate as an assignee pursuant purchase the Commitment and outstanding Loans of any such Non-Consenting Lender, with such bank, if not already a Lender hereunder, to Section 8.07 (which may include any Lender with be subject to the consent of such Lender) (each such Person, an "Additional Commitment Lender") with the prior approval of the Administrative Agent (which approval shall not to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") pursuant to which such Additional Commitment Non-Consenting Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, assign its Commitment shall be in addition and Loans to such Lender’s Commitment hereunder), and such Additional Commitment bank. If any Non-Consenting Lender shall become a "Lender" for all purposes of remains party to this Agreement on at the Relevant Anniversary or time of any subsequent extension request by the Current Termination DateBorrower, as the case may be.
(iv) If and only if the total of the Commitments of the Continuing Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than holding 100% of the aggregate amount previously extended Commitments must agree to any such extension request in order for any such further extension to be effective so that at no time shall there be more than two different maturity dates in effect with respect to this Agreement.
(d) The effective date of any extension of the Commitments in effect immediately prior to Maturity Date shall be the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Existing Date. The Borrowers agree Administrative Agent shall enter any modifications made to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder Commitments pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of Section 2.13 in the date of the request Register maintained pursuant to clause (i) above and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date8.5(c); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract
Sources: Credit Agreement (Harris Corp /De/)
Extension of Commitments. (ia) The Company shall have One time during each period from the right, upon no earlier than 60 date that is 90 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of Anniversary Date to the first two anniversaries of the Effective date that is 30 days prior to each such Anniversary Date (each, a "Relevant Anniversary"but in any case not more than three times during the term of this Agreement), the Borrowers may, by written notice (an “Extension Request”) given to the Agent, request that the Stated Termination Date be extended. Each such Extension Request shall contemplate an extension of the Stated Termination Date to a date that is one year after the Stated Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date")effect.
(iib) The Agent shall promptly advise each Bank of its receipt of any Extension Request. Each Lender acting Bank may, in its sole and individual discretion will use its reasonable efforts discretion, consent to notify a requested extension by giving written notice thereof to the Administrative Agent at least by not later than the date (the “Extension Confirmation Date”) that is 20 days before after the Relevant Anniversary whether it agrees date of the Extension Request, which consent shall be irrevocable when given. Each Bank that does not consent to participate such extension (a “Non-Extending Bank”) shall notify the Agent of such fact promptly after such determination (but in such extension. Any Lender any event no later than the Extension Confirmation Date) and any Bank that does not so notify advise the Administrative Agent that it agrees on or before the Extension Confirmation Date shall be deemed to be a Non-Extending Bank. The election of any Bank to agree to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "Lenders" under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 (which may include any Lender with the consent of such Lender) (each such Person, Bank is herein called an "Additional Commitment Lender"“Extending Bank”) with the approval of the Administrative Agent (shall not obligate any other Bank to be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance satisfactory so agree. Subject to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Company’s right to replace a Bank pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a LenderSection 2.21, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "Lender" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total aggregate amount of the Commitments of the Lenders Banks that have so agreed to extend the their Stated Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), Date shall be more than 50% of the aggregate amount of the Total Commitments in effect immediately prior to the Relevant Anniversaryapplicable Anniversary Date, then, promptly following the opening of business on the first Business Day following the applicable Extension Confirmation Date, the Current Termination Agent shall notify the Company in writing as to whether the requested extension has been granted (such written notice being an “Extension Confirmation Notice”) and, if granted, such extension shall become effective upon the issuance of the Extension Confirmation Notice. The Agent shall promptly thereafter provide a copy of such Extension Confirmation Notice to each Bank. If such extension is not granted, the Agent shall give the Company notice of the identity of any non-consenting Banks. If the Company replaces one or more non-consenting Banks pursuant to the provisions of Section 2.21, and any such replacement Bank becomes a Bank on or before the earlier of (i) 30 days after the Extension Confirmation Date and (b) 5 days before the applicable Anniversary Date, and consents to the Extension Request at the time it becomes a Bank, such consent shall be extended, effective retroactively as of the Relevant Anniversary, to the Extended Termination Extension Confirmation Date; provided that, if such Commitments shall be less than 100% .
(c) In connection with any extension of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Stated Termination Date, the Company, the Agent and each Bank may make such technical and conforming modifications to this Agreement as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (d).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (d) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above Agent and the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required Company determine to be true and correct in all material respects only as of such date); and
(3) if on reasonably necessary to evidence the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such dateextension.
Appears in 1 contract
Extension of Commitments. (i) The Company shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries of the Effective Date (each, a "“Relevant Anniversary"”), to request that the Termination Date then in effect (the "“Current Termination Date"”) be extended to the date one year after such Current Termination Date (such extended date, an "“Extended Termination Date"”).
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "“Declining Lender"”) shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (dc) (but shall not have any Commitment during any extended period to which it has not agreed).. The Administrative Agent shall notify the Company not later than 15 days prior to the Relevant Anniversary of the decision of the Lenders regarding the Company’s request for an extension of the Termination Date. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, each Declining Lender with, and add as "“Lenders" ” under this Agreement, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 banks or other financial institutions (which may include any Lender with the consent of such Lender) (each such Personeach, an "“Additional Commitment Lender"”) with the approval of the Administrative Agent and each Swing Line Lender (not to be unreasonably withheldwithheld or delayed), each of which Additional Commitment Lenders shall have entered into an agreement in form and substance reasonably satisfactory to the Borrowers and the Administrative Agent (an "“Additional Commitment Agreement"”) pursuant to which such Additional Commitment Lender shall undertake a Commitment (if any such Additional Commitment Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder), and such Additional Commitment Lender shall become a "“Lender" ” for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (dc), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dc).
(v) Notwithstanding the foregoing, each extension of the Termination Date hereunder pursuant to this subsection (dc) shall be effective only if:
(1) no Default or Event of Default has occurred and is continuing as of the date of the request pursuant to clause (i) above and the Relevant Anniversary; and;
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the date of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Extension of Commitments. (ia) The Company Borrower may request by notice (an "Extension Request Notice") to the Agent (which shall promptly notify the Banks), given during any period beginning on (and including) the day that is 75 days prior to an anniversary of the Effective Date and ending on (and including) the day that is 30 days prior to such anniversary, but in no event later than 30 days prior to the latest Stated Termination Date for any Bank, that the Banks extend their respective Revolving Credit Commitments for an additional year; provided that the Borrower may effectuate an extension pursuant to this Section 2.21 only two times; provided further that the Borrower agrees that it shall not make such request unless on the date of such request it has satisfied all conditions that would be required pursuant to Article III for a Revolving Credit Advance on such date (other than the giving of a Notice of Revolving Credit Borrowing). If a Bank agrees, in its sole and absolute discretion, to so extend its Revolving Credit Commitment, it will give notice to the Agent of its decision to do so within the ten day period following the date of such Extension Request Notice. Promptly following expiration of such ten day period, the Agent will notify the Borrower and the Banks of the Banks from which it has received such a notice agreeing to so renew ("Extending Banks"). Any failure by a Bank to so notify the Agent shall be deemed to be a decision by such Bank to not so extend its Revolving Credit Commitment (each a "Non-Extending Bank").
(b) If all Banks elect to so extend their respective Revolving Credit Commitments, the Stated Termination Date for each Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank as in effect immediately prior to such extension.
(c) The Borrower shall have the right, upon no earlier than 60 days but no later than 45 days’ notice to on or before the Administrative Agent (which shall promptly forward such notice to the Lenders) prior to each of the first two anniversaries anniversary of the Effective Date (each, a "Relevant Anniversary")in respect of which an Extension Request Notice is given, to request that the Termination Date then in effect (the "Current Termination Date") be extended to the date one year after such Current Termination Date (such extended date, an "Extended Termination Date").
(ii) Each Lender acting in its sole and individual discretion will use its reasonable efforts to notify the Administrative Agent at least 20 days before the Relevant Anniversary whether it agrees to participate in such extension. Any Lender that does not so notify the Administrative Agent that it agrees to such extension at least 20 days before the Relevant Anniversary (each, a "Declining Lender") shall continue to be a Lender with a Commitment until the earlier of the Current Termination Date or until such Lender is replaced pursuant to clause (iii) of this subsection (d) (but shall not have any Commitment during any extended period to which it has not agreed).
(iii) The Company shall have the right to replace, effective as of the Relevant Anniversary or the Current Termination Date, replace each Declining Lender Non-Extending Bank with, and add as "LendersBanks" under this AgreementAgreement in place thereof, one or more Persons eligible to participate as an assignee pursuant to Section 8.07 Eligible Assignees (which may include any Lender with the consent of such Lender) (each such Personeach, an "Additional Commitment LenderBank") with the approval of the Administrative Agent (not to be unreasonably withheld)as provided in Section 8.08, each of which Additional Commitment Lenders Banks shall have entered into an agreement in form Assignment and substance satisfactory to the Borrowers and the Administrative Agent (an "Additional Commitment Agreement") Acceptance pursuant to which such Additional Commitment Lender shall Bank shall, effective as of such anniversary, undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender Bank is already a LenderBank, its Revolving Credit Commitment shall be in addition to any other Revolving Credit Commitment of such Lender’s Commitment hereunderBank hereunder on such date), .
(d) If the Revolving Credit Commitments of the Extending Banks and such the Additional Commitment Lender Banks aggregate 50% or less of the aggregate Revolving Credit Commitments of all Banks, none of the Revolving Credit Commitments (including the Revolving Credit Commitment of any Extending Bank) will be extended and the Stated Termination Date for each Bank shall remain unchanged.
(e) If the Revolving Credit Commitments of the Extending Banks and the Additional Commitment Banks aggregate greater than 50% and less than 100% of the aggregate Revolving Credit Commitments of all Banks, (i) the Stated Termination Date for each Bank that is an Extending Bank or an Additional Commitment Bank shall automatically become the date that is one year following the Stated Termination Date for such Bank (or in the case of an Additional Commitment Bank that was not already a Bank with a Revolving Credit Commitment, one year following the Stated Termination Date of the Bank it replaced) as in effect immediately prior to such extension, (ii) the Stated Termination Date for each Bank that is a Non-Extending Bank shall remain unchanged and (iii) each Additional Commitment Bank shall thereupon become a "LenderBank" for all purposes of this Agreement on the Relevant Anniversary or the Current Termination Date, with a Revolving Credit Commitment as the case may be.
(iv) If and only if the total of the Commitments of the Lenders that have so agreed to extend the Termination Date, taking into account any Commitment increases pursuant to clause (iii) of this subsection (d), shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Current Termination Date shall be extended, effective as of the Relevant Anniversary, to the Extended Termination Date; provided that, if such Commitments shall be less than 100% of the aggregate amount of the Commitments in effect immediately prior to the Relevant Anniversary, the Borrowers shall have the right to rescind the request to so extend the Current Termination Date. The Borrowers agree to pay in full all amounts owing hereunder to each Declining Lender on the Relevant Anniversary or the Current Termination Date, as the case may be, on which such Declining Lender is replaced as a Lender pursuant to clause (iii) of this subsection (dcontemplated by Section 2.21(c).
(vf) Notwithstanding The election by any Bank to renew at any time shall not obligate such Bank to renew at any other time, it being agreed that each election of any Bank to renew or not renew shall be made by such Bank in its sole and absolute discretion and that such discretion shall not be limited by any prior election to renew.
(g) The Borrower agrees to deliver to the foregoing, Agent on each date that any extension of the Termination Date hereunder pursuant to this subsection (d) shall be Section 2.21 becomes effective only if:
(1) no Default or Event a certificate of Default has occurred and is continuing as an officer of the Borrower to the effect that on such date of the request Borrower has satisfied all conditions that would be required pursuant to clause Article III for a Revolving Credit Advance on such date (i) above and other than the Relevant Anniversary; and
(2) all representations and warranties contained in Section 4.01 are true and correct in all material respects on and as giving of the date a Notice of the request pursuant to clause (i) above and the Relevant Anniversary, including without limitation the representation and warranty of the Borrowers as to the execution, delivery and performance by them of this Agreement and the Notes, taking into account such extension, having been duly authorized by all necessary corporate action (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such dateRevolving Credit Borrowing); and
(3) if on the Relevant Anniversary or the Current Termination Date there are Advances outstanding, appropriate adjustments shall be made among the Lenders to cause the outstanding Advances to be held ratably by all Lenders in accordance with their respective Commitments as of each such date.
Appears in 1 contract