Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that: (i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date; (ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment; (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and (iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower. (b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase. (c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Air Methods Corp)
Increase in Commitments. (a) Notwithstanding anything to The Borrower shall have the contrary contained in this Agreement right, so long as no Default or Event of Default shall have occurred and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment maycontinuing, without the consent of Lendersany Lender (except as described in clause (i) below) but with the consent of each Lead Agent (which consents shall not be unreasonably withheld), at any time prior to the fifth anniversary of the Closing Date, to increase the total amount of the Aggregate Commitments hereunder by (a) accepting the offer or offers of any Person or Persons (not then a Lender) constituting an Eligible Assignee to become a new Lender hereto with a Commitment or Commitments up to the amount (or aggregate amount) of any such increase and/or (b) accepting the offer of any existing Lender or Lenders to increase its (or their) Commitment (or Commitments) up to the amount of any such increase; provided, however, that (i) in no event shall any Lender's Commitment be increased without the consent of such Lender, (ii) if any Loans (other than Competitive Bid Loans) are outstanding hereunder on the date that any such increase is to become effective, the Administrative Agent shall make such transfers of funds as are necessary in order that the outstanding balance of such Loans reflect the Commitment Percentages of the Lenders after giving effect such amendments to any increase pursuant to this Agreement Section 2.9, (iii) in no event shall the Aggregate Commitment hereunder be increased unless the Aggregate Commitment under the 364-Day Credit Agreement, if still in effect, is increased by a proportionate amount pursuant to the terms thereof and the other Transaction Documents as may be necessary or appropriate, (iv) in no event shall any such increase result in the reasonable opinion amount of the Agent and Total Commitments exceeding $1,000,000,000. Any increase to the Aggregate Commitment pursuant to clause (a) of the first sentence of this Section 2.9 shall become effective upon the execution of a New Lender Supplement in the form of Exhibit G-1 hereto by the Borrower, Lead Agents and relevant new Lender or Lenders and any increase to effect the provisions Aggregate Commitment pursuant to clause (b) of the first sentence of this Section 2.32.9 shall become effective upon the execution of a Commitment Increase Supplement in the form of Exhibit G-2 hereto, executed by the Borrower, the Lead Agents and the increasing Lender or Lenders. The Administrative Agent shall forward copies of any such supplement to the Lenders promptly upon receipt thereof.
Appears in 1 contract
Increase in Commitments. (a) The Borrower shall have the right, at any time prior to the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Revolver Commitments (each such requested increase, a “Commitment Increase”), by having one or more existing Lenders increase their respective Revolver Commitments then in effect (each, an “Increasing Lender”), by adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $55,000,000, (iii) no Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender, and (vii) Section 5.07 will be adjusted by mutual consent of the Borrower and the Majority Lenders. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender. Other than fees payable to the Administrative Agent, any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and the Administrative Agent, shall be for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent). The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrowers may reasonably require, all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower to effect a Commitment Increase pursuant to this Section 2.14.
(c) If the aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Section 2.14 to the contrary contained in this Agreement contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and provided all of no Commitment Increase shall be effective) unless the conditions set forth in Section 7.1(c2.14(a) have been satisfied, upon notice to Agent (which shall promptly notify as well as the Lenders and following conditions precedent are satisfied on the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity applicable Commitment Increase Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) The Administrative Agent shall have received the final maturity date following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 2.14(e), all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Commitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (x) as of the Commitment Increase Date, all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any Incremental Term Loan such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or opinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall be no earlier than have reasonably requested; and
(F) such other documents or items that the Term Loan Maturity Date;Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the Revolving Credit Maturity Date case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall not have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be modified by deemed to be repaid, (ii) immediately after the increase effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the Revolving Credit Commitment aggregate principal amount of the Initial Advances and of the types and for the Interest Period specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with the Incremental Revolving Loan Commitment;
Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and (z) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest rate margins andon the Initial Advances to the Lenders entitled thereto, subject and (vii) the signature pages hereto shall be deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin above in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, each Euro-Dollar Advance shall be increased so that subject to indemnification by the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers Borrower pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.38.05 if the Commitment Increase Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time on or after the Restatement Effective Date, the Borrower may, by written notice to the contrary contained Agent (which shall promptly deliver a copy to each of the Lenders), request at any time or from time to time that the total Revolving-2 Advance Commitments be increased; provided that (i) the aggregate amount of all such increases pursuant to this Section shall not exceed $500,000,000, (ii) the Borrower shall offer each Revolving-2 Lender the opportunity to increase its Revolving-2 Advance Commitment by its Revolving Percentage of the proposed increased amount, and (iii) each Revolving-2 Lender, in its sole discretion, may either (A) agree to increase its Revolving-2 Advance Commitment by all or a portion of the offered amount or (B) decline to increase its Revolving-2 Advance Commitment. Any such notice shall set forth the amount of the requested increase in the Revolving-2 Advance Commitment and the date on which such increase is requested to become effective. In the event that the Revolving-2 Lenders shall have agreed to increase their Revolving-2 Advance Commitment by an aggregate amount less than the increase in the total Revolving-2 Advance Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), which may include any Lender, to provide a Revolving-2 Advance Commitment or increase its existing Revolving-2 Advance Commitment in an aggregate amount equal to the unsubscribed amount; provided that each Lender and Augmenting Lender, if not already a Revolving Lender hereunder, shall be an Eligible Assignee and subject to the approval of the Swingline Lender, each LC Bank, the Agent and the Borrower (which approvals, in each case, shall not be unreasonably withheld or delayed). Any such additional Revolving-2 Advance Commitments shall be deemed an “Incremental Revolving Commitment” and the aggregate amount thereof agreed to be provided by the applicable Revolving-2 Lenders or Augmenting Lenders shall be the “Incremental Revolving Advance Commitment Amount.”
(b) Increases to and new Revolving-2 Advance Commitments (each, a “Commitment Increase”) created pursuant to this Agreement Section 2.20 shall become effective upon the execution and provided all delivery by the Borrower, the Agent and any Revolving-2 Lenders (including any Augmenting Lenders) agreeing to increase their existing Revolving-2 Advance Commitments or extend new Revolving-2 Advance Commitments, as the case may be, of an agreement providing for such increased or additional Revolving-2 Advance Commitments (a “Commitment Increase Agreement”), subject to the satisfaction of any conditions set forth in such agreement. Notwithstanding the foregoing, no increase in the total Revolving-2 Advance Commitments (or in the Revolving-2 Advance Commitment of any Revolving-2 Lender) shall become effective under this clause (b) unless, (i) on the date of such increase, unless otherwise agreed by the Lenders providing such Commitment Increase, the conditions set forth in Section 7.1(c3.03 shall be satisfied (as though a Borrowing were being made on such date) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior Agent shall have received a certificate to the earlier that effect dated such date and executed by any Executive Officer of the Revolving Credit Maturity Date Borrower and the Term Loan Maturity DateBorrower’s Secretary or any Assistant Secretary, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date Agent shall not be modified have received (to the extent requested by the increase Agent reasonably in advance of such date) legal opinions, board resolutions and other closing certificates and documentation that are required by the Revolving Credit Commitment Increase Agreement and are consistent with the Incremental Revolving Loan Commitment;
those delivered under Section 3.01 and (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan Agent shall be determined have received a certificate dated such date and executed by the Borrowers Borrower’s Financial Officer demonstrating pro forma compliance with the financial covenants set forth in Sections 5.02(e) and (f) after giving effect to the Lenders under such Incremental Loan provided that incurrence of the Commitment Increase for the most recently ended four Fiscal Quarter period as if the interest rate margin in respect of any Incremental Loan exceeds Commitment Increase had been incurred at the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect beginning of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseperiod.
(c) Incremental Term Loans If and to the extent that any Revolving-2 Lenders and/or other Augmenting Lenders agree, in their sole discretion, to provide any such additional Revolving-2 Advance Commitments (i) the Revolving Percentages of the respective Lenders in respect of Revolving-2 Advances shall become Term Loans under this Agreementbe proportionally adjusted (provided, and however, that the amount equal to the adjusted Revolving Percentage of a Revolving-2 Lender in respect of Revolving-2 Advances multiplied by the aggregate amount of Revolving-2 Advance Commitments as increased by the Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant Advance Commitment Amount may not exceed such Lender’s Revolving-2 Advance Commitment immediately prior to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, any such adjustment without the consent of Lenders, effect such amendments to this Agreement Lender) and such adjustment shall be recorded in the Register and (ii) at such time and in such manner as the Borrower and the Agent shall agree (it being understood that the Borrower and the Agent will use commercially reasonable efforts to avoid the prepayment or assignment of any LIBOR Advances on a day other Transaction Documents as may be necessary or appropriate, in than the reasonable opinion last day of the Agent Interest Period applicable thereto), the Lenders shall assign and assume outstanding Revolving Advances and participations in outstanding Letters of Credit and Swingline Loans so as to cause the amounts of such Revolving Advances and participations in Letters of Credit and Swingline Loans held by each Lender with a Revolving Percentage with respect to Revolving Advance Commitments in excess of zero to conform to its Revolving Percentage with respect to Revolving Advance Commitments.
(d) The Applicable Interest Rate Margins for any Commitment Increase shall be agreed upon by the Borrower and the BorrowerRevolving-2 Lenders and/or Augmenting Lenders that agree to provide such Commitment Increase. Any Commitment Increase to the Revolving-2 Advance Commitments shall be subject to the terms applicable to Revolving-2 Advances under the Loan Documents, other than with respect to pricing. The Borrower shall execute and deliver any additional Revolving-2 Notes, other amendments or modifications to any Loan Document (including an amendment to the definition of Applicable Interest Rate Margin, if necessary to reflect the interest rate on the Incremental Revolving Commitment), and deliver any other certificates, consents or legal opinions as the Agent may reasonably request in connection with any Commitment Increase.
(e) If, at the time that any Commitment Increase becomes effective, any Letters of Credit issued hereunder are outstanding or any Swingline Loans are outstanding, each Revolving Lender’s participation in such Letters of Credit and Swingline Loans will be adjusted in accordance with such Revolving Lender’s Revolving Percentage, after giving effect to such Commitment Increase. If (i) the provisions of Applicable Interest Rate Margin on the Incremental Revolving Commitment is greater than that accruing on the existing Revolving-2 Advance Commitment by 0.50% or more, then the Applicable Interest Rate Margin on the existing Revolving-2 Advances shall be increased to the extent necessary to equal the Applicable Interest Rate Margin on the Advances to be made under the Incremental Revolving Commitment and (ii) the Applicable Facility Fee Rate on the Incremental Revolving Commitment is greater than that accruing on the existing Revolving-2 Advance Commitment by 0.125% or more, then the Applicable Facility Fee Rate on the existing Revolving-2 Advances shall be increased to the extent necessary to equal the Applicable Facility Fee Rate on the Advances to be made under the Incremental Revolving Commitment.
(f) Notwithstanding anything in this Section 2.3to the contrary, the Borrower shall not be permitted to request, nor shall the Revolving-2 Lenders or Augmenting Lenders be allowed to provide, Commitment Increases, if after giving effect thereto, the aggregate outstanding principal amount of Advances plus Letter of Credit Liabilities plus unused Revolving Advance Commitments would exceed $3,500,000,000.
Appears in 1 contract
Sources: Credit Agreement (Supervalu Inc)
Increase in Commitments. Prior to the Maturity Date and upon at least 45 days’ prior written notice to the Administrative Agent (which notice shall be promptly transmitted by the Administrative Agent to each Lender), the Borrower shall have the revocable right, from time to time during the term of this Agreement and subject to the terms and conditions set forth below, to increase the aggregate amount of the Aggregate Commitments; provided that (a) Notwithstanding anything to no Default or Event of Default shall exist at the contrary contained in this Agreement and provided all time of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify request or the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an proposed increase in the Total Revolving Credit Commitment or the Term Loan Amount by Aggregate Commitments, (b) any such increase must be in a minimum amount of $15,000,000 on each occasion 25,000,000 and in integral multiples of $5,000,000 above such amount, (c) the sum of any increases to the Commitment during the term of this Agreement shall not exceed FIVE HUNDRED MILLION DOLLARS ($500,000,000), (d) no individual Lender's Commitment may be increased without such Lender's written consent, (e) the Borrower shall execute and deliver such Note(s) as are necessary to exceed $50,000,000 reflect the increase in the aggregate respective Commitments, (f) Schedule 1.1 shall be amended to reflect the revised Commitments and revised Applicable Percentages of the Lenders and (g) if any Loans are outstanding at the time of an increase in the Aggregate Commitments, the Borrower will prepay (provided that any such prepayment shall not be subject to any minimum amount of prepayment or any requirements regarding pro rata repayments but shall be subject to Section 3.5) one or more existing Loans in an amount necessary such that after giving effect to the increase in the Aggregate Commitments each Lender will hold its pro rata share (based on its share of the revised Aggregate Commitments) of outstanding Loans. Any such increase in the Term Loan AmountAggregate Commitments shall apply, an "Incremental Term Loan" and any such increase in at the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date option of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect (x) the Commitment of one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto and if more than one Lender wishes to participate then such increase shall be allocated pro rata among such Lenders (based on the amount that each such Lender was willing to increase its Commitment) and/or (y) a new Commitment for one or more institutions that is not an existing Lender so long as such institution (A) conforms to the definition of Eligible Assignee, (B) is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (C) receives a Commitment of at least $5,000,000 and (D) becomes a Lender under this Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Agreement in a manner acceptable to the Borrower and the Administrative Agent. This Section shall supersede any provisions of this in Section 2.32.13 or 10.6 to the contrary.
Appears in 1 contract
Increase in Commitments. Borrowers may, at any time prior to the expiration or termination of the Commitments, request an increase in Commitments from time to time upon not less than 45 days’ prior notice delivered to the Agent, as long as (a) Notwithstanding anything to the contrary contained each requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 10,000,000.00 and is offered on each occasion terms identical to the existing Commitments (including, without limitation, with respect to pricing, fees and not maturity), except that the Borrowers may pay a closing fee in connection with such increase, such fee to be specified by Borrowers, but in no event to exceed 50 basis points of the increased Commitments, (b) total increases under this Section do not exceed $50,000,000 35,000,000.00 in the aggregate for all such increases, and no more than four (any 4) increases are made during the term of this Agreement and (c) no Default or Event of Default has occurred and is continued or would be caused by such increase or any substantially concurrent borrowing thereunder. Agent shall promptly notify Lenders in writing of the Term Loan Amount, an "Incremental Term Loan" and any such requested increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause within ten (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days from the date of delivery of thereafter, each Lender shall notify Agent if and to what extent such notice Lender commits to the Lenders and the Eligible Financial Institutions)increase its Commitment. Any Lender not responding within such period shall be deemed to have declined an increase. No Lender shall be obligated to provide any Incremental Loan, increased Commitments unless it so agrees; provided, the Borrower shall first request such increase from each existing Lender in accordance with such Lender’s pro rata share of the existing Commitment (as of the date of such request) prior to approaching any other Person, and each such Lender may elect or decline, in its sole discretion, to provide such increase. Each Lender shall notify Agent within such time period whether or not it agrees If existing Lenders fail to make commit to the full requested increase as contemplated above, Eligible Assignees may issue additional Commitments for any unallocated portion of the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loanincrease and shall become Lenders hereunder in accordance with the terms hereof. Any Lender not responding within such time period Total Commitments shall be deemed to have declined to increase its commitment. At increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments in accordance with the terms above. On the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrower may from time to time in consultation with the Administrative Agent, on any Business Day prior to the contrary contained in this Agreement and provided all Termination Date so long as no Event of Default exists, increase the aggregate amount of the conditions Commitments by delivering a Commitment Amount Increase Request at least 10 Business Days prior to the desired effective date of such increase (the "Commitment Amount Increase") identifying the additional Commitments for existing Lender(s) agreeing to increase its/their Commitment(s) (or identifying one or more additional Lender(s) and the amount of its/their Commitment(s)); provided, however, that (i) the aggregate of all Commitment Amount Increases shall not exceed $75,000,000, (ii) the aggregate amount of the Commitments shall not at any time exceed $150,000,000, (iii) any increase of the aggregate amount of the Commitments shall be in an amount not less than $10,000,000 and (iv) if the Borrower invites additional Lenders to join this Agreement, such additional Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The effective date of any Commitment Amount Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, or the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 7.1(c12.12) have been satisfied, upon notice of the outstanding Revolving Loans to Agent (which shall promptly notify the Lenders and providing the Eligible Financial Institutions)Commitment Amount Increase so that, Borrowers mayafter giving effect to such assignments, prior each Lender (including the Lenders providing the Commitment Amount Increase) will hold Revolving Loans equal to its Percentage of all outstanding Revolving Loans. The Borrower agrees to pay any reasonable expenses of the Administrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the earlier of the Revolving Credit Maturity Date contrary, no Lender shall have any obligation to increase its Commitment and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit no Lender's Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanwithout its consent thereto, and (in consultation with Agent) shall specify the time period within which each Lender may at its option, unconditionally and each Eligible Financial Institutionwithout cause, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined decline to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseCommitment.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (International Assets Holding Corp)
Increase in Commitments. (a) Notwithstanding anything Provided there exists no Default or Event of Default and prior to the contrary contained in this Agreement and provided all date thereof the Borrower has not made any voluntary reduction of the conditions set forth in Section 7.1(c) have been satisfiedAggregate Revolving Credit Commitments, upon not less than five Business Days' prior notice to the Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial InstitutionsLenders), Borrowers the Borrower may, on a one-time basis on any Business Day prior to the earlier date that is the second anniversary of the Revolving Credit Maturity Date and the Term Loan Maturity Closing Date, request on up increase the Aggregate Commitments by a principal amount not exceeding the Maximum Increase Amount, provided that such increase with respect to three occasions an increase any Facility must be made in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed 5,000,000 or integral multiples of $50,000,000 1,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
excess thereof. Such notice shall indicate (i) the final maturity date amount of any Incremental Term Loan shall such increase, (ii) whether such increase is to be no earlier than to the Revolving Credit Facility, the Term Loan Maturity Date;
A Facility, the Term Loan B Facility, or a specified combination thereof (iiand if to more than one Facility, the amount of the aggregate increase to be allocated to each such Facility), (iii) the Revolving Credit Maturity Date shall not identity of those Persons, each of whom meets the definition of an Eligible Assignee (the Borrower's approval being deemed given by inclusion of such Person in such notice), who will be modified by accepting the increase in the Revolving Credit Commitment with Aggregate Commitments (the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and"Increase Lenders"), subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent Facility and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loaneach such Person's commitment, and (in consultation with Agentv) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the proposed effective date of delivery such increase (all of such notice to which must occur on the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loansame date, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") ). The Borrower may, but is not required to, offer the existing Lenders an opportunity to commit to any such increase, it being understood that no existing Lender will have any obligation to commit to any such increase. In the event that the aggregate commitments from the Increase Lenders exceed either the aggregate proposed increase or the proposed increase for any Facility, the Borrower and the Administrative Agent will mutually determine the identity of those Persons who will become Increase Lenders and the final allocation to each of them. Each Increase Lender that is not a Lender hereunder prior to such time will become a Lender hereunder pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel. The Credit Extension of any increase in the Term Loan A Facility or the Term Loan B Facility hereunder will be made in a manner, and upon the satisfaction of conditions, reasonably similar to those required for the Credit Extension of the Term Loan B Facility with appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
(b) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default or Event of Default exists or would result from such increase (giving pro forma effect thereto).
(c) Incremental Term Loans shall become Term Loans under Upon the exercise of this AgreementSection 2.15, and Incremental Revolving Loans shall become Revolving Loans under this Agreement as conditions to the effectiveness thereof, (i) a revised Schedule 1.02
(a) will be provided reflecting such exercise (and all assignments since the Closing Date), (ii) each Increase Lender will make those representations and warranties made by an Eligible Assignee in connection with an assignment pursuant to Section 10.07, in a manner acceptable to the Administrative Agent, (iii) each Guarantor will reaffirm its obligations under the applicable Guaranty in connection with the increased principal amount of the applicable Facilities, and (iv) the amortization of the Term Loan A Facility pursuant to Section 2.08 will be adjusted as necessary to provide at each date set forth therein for a payment of principal in an amendment amount which is a percentage of the Outstanding Amount of the Term Loan A after its increase as provided in this Section 2.15 that is equal to the ratio determined by the payment set forth opposite such date as of the Closing Date to the Outstanding Amount of the Term Loan A on the Closing Date.
(an d) In the event that any amount of the increase in the Aggregate Commitments is to be to the Term Loan B Facility (the "Incremental Loan AmendmentTLB Increase Amount") to this Agreement and, as appropriate), the other Transaction Documents. Subject Applicable Margin for Eurodollar Rate Segments and Base Rate Segments of the TLB Increase Amount shall be equivalent to Section 13.2the Applicable Margin then applicable to Eurodollar Rate Segments and Base Rate Segments of the initial Term Loan B advanced on the Closing Date; provided, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriatehowever, in the reasonable opinion event the Applicable Margin required successfully to arrange the TLB Increase Amount (the "TLB Increase Amount Applicable Margin") is greater than the Applicable Margin then applicable to the Term Loan B, then the Applicable Margin with respect to the entire Term Loan B, including the TLB Increase Amount, shall be increased to equal the TLB Increase Amount Applicable Margin effective as of the Agent effective date of the TLB Increase Amount; provided further that if the TLB Increase Amount is issued at a discount or with payment of fees, the Term Loan B Lenders of the initial Term Loan B advanced on the Closing Date shall be compensated in an economically equivalent manner. It is understood that any increase in the Applicable Margin pursuant to the first proviso in the preceding sentence and any compensation to be made in connection with a discount or fee paid with respect to the Borrower, TLB Increase Amount shall only apply to effect the Term Loan B Facility on and after the Increase Effective Date.
(e) This Section 2.15 shall supersede any provisions of this Section 2.3in Sections 2.14 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Increase in Commitments. Prior to the Maturity Date and upon at least 30 days' but no more than 45 days' prior written notice to the Administrative Agent (which notice shall be promptly transmitted by the Administrative Agent to each Lender), the Borrower shall have the one-time right, subject to the terms and conditions set forth below, to increase the Revolving Loan Commitment; provided that (a) Notwithstanding anything the Revolving Loan Commitment may not be increased to an amount greater than Four Hundred Million Dollars ($400,000,000) without the contrary contained in this Agreement and provided all prior written consent of the conditions set forth in Section 7.1(cRequired Lenders, (b) have been satisfied, upon notice to Agent (which no Default or Event of Default shall promptly notify the Lenders exist and the Eligible Financial Institutions), Borrowers may, be continuing either prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Dateor after giving effect to such increase, request on up to three occasions an (c) such increase must be in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion 10,000,000 and not in integral multiples of $1,000,000 above such amount, (d) no individual Lender's Commitment may be increased without such Lender's consent, (e) the Borrower shall execute and deliver such Note(s) as are necessary to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any reflect such increase in the Revolving Credit Loan Commitment, (f) Schedule 1.1 shall be amended to reflect the revised Commitments of the Lenders and (g) if any Loans are outstanding at the time of such increase, the Borrower will prepay (provided that any such prepayment shall be subject to Section 4.3) one or more existing Loans in an amount necessary such that after giving effect to such increase in the Revolving Loan Commitment an "Incremental each Lender will hold its pro rata share (based on its share of the revised Revolving Loan Commitment" and ) of outstanding Loans. Any such loan an "Incremental increase in the Revolving Loan" and together with Loan Commitment shall apply, at the Incremental Term Loanoption of the Borrower, each an "Incremental Loan"), provided that:
to (i) the final maturity date Commitment of one or more existing Lenders; provided that any Incremental Term Loan shall Lender whose Commitment is being increased must consent in writing thereto (such consent to be no earlier than the Term Loan Maturity Date;
in such existing Lender's sole discretion) and/or (ii) the Revolving creation of a new Commitment to one or more institutions that is not an existing Lender; provided that any such institution (A) must conform to the definition of Eligible Assignee and (B) must become a Lender under this Credit Maturity Date shall not be modified Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Credit Agreement in a manner acceptable to the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers Borrower and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the BorrowerAdministrative Agent.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (ai) Notwithstanding anything Once per calendar year (or more frequently as permitted by Agent) Borrower may, by written notice to Agent, request that the contrary contained Total Commitment Amount be increased by an amount not to exceed $100,000,000 in this Agreement and provided the aggregate for all such increases from the Closing Date until the last day of the conditions set forth Commitment Period, provided that (A) no Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase and (B) Borrower shall have delivered to Agent, together with such written notice, a copy of Borrower’s duly adopted corporate resolutions, in Section 7.1(c) have been satisfiedform and substance satisfactory to Agent, upon notice to Agent (which shall promptly notify that authorize the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an requested increase in the Total Revolving Credit Commitment or Amount, which resolutions shall be certified by the Term Loan Secretary of Borrower as being true, correct, complete and in full force and effect. Upon receipt of any such request, Agent shall deliver a copy of such request to each Lender. Borrower shall set forth in such request the amount of the requested increase in the Total Commitment Amount by (which in each case shall be in a minimum amount of $15,000,000 25,000,000 and in such minimum increments in excess thereof as Agent shall permit) and the date on each occasion and not to exceed $50,000,000 in the aggregate (any which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such request and that, in any event, must be at least 90 days prior to the Term Loan Amountlast day of the Commitment Period), and shall offer each Lender the opportunity to increase its Revolving Credit Commitment by its Commitment Percentage of the proposed increased amount. Each Lender shall, by notice to Borrower and Agent given not more than 10 days after the date of Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each such Lender so agreeing being an "Incremental Term Loan" “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and Lender that does not deliver such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each a notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period 10 days shall be deemed to have declined to increase its commitmentRevolving Credit Commitment and each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). At If, on the 10th day after Agent shall have delivered notice as set forth above, the Increasing Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Commitment Amount requested by Borrower, Borrower may arrange for one or more banks or other entities that are acceptable to Agent (each such timePerson so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such documentation as Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Lender with a Revolving Credit Commitment hereunder. Any increase in the Total Commitment Amount may be made in an amount that is less than the increase requested by Borrower if Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the outstanding Revolving Loans (if any) are held by the Lenders with Revolving Credit Commitments in accordance with their new Commitment Percentages. This may be accomplished at the discretion of Agent: (w) by requiring the outstanding Loans to be prepaid with the proceeds of new Loans; (x) by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the Loans outstanding at the time of any increase in the Total Commitment Amount pursuant to this Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions 2.10(b) to join this Agreement as Lenders hereunder for remain outstanding until the portion last days of the Incremental Loan not taken respective Interest Periods therefor, even though the Lenders would hold such Loans other than in accordance with their new Commitment Percentages; or (z) by existing Lenders. Agent shall notify Borrowers and each Lender any combination of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseforegoing.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. (a) Notwithstanding anything At any time following the Closing Date, the Borrower may by written notice to the contrary contained in this Agreement and provided all of Administrative Agent elect to request the conditions set forth in Section 7.1(cestablishment of:
(i) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment one or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate more incremental term loan commitments (any such increase in the incremental term loan commitment, an “Incremental Term Loan AmountCommitment”) to make one or more term loans (any such additional term loans, an "“Incremental Term Loan" and any such increase ”); or
(ii) one or more increases in the Revolving Credit Commitment Commitments (any such increase, an "“Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and ” and, together with the Incremental Term LoanLoan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,00050,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an "“Increased Amount Date”) on which the Borrower proposes that any Incremental Loan"Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the final maturity date making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Consolidated Total Leverage Ratio is less than or equal to 4.50 to 1.00 and (2) the Borrower is in compliance with the financial covenantsAsset Coverage Ratio set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable,7.10, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be no set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity latest Termination Date shall not be modified by the increase then in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, effect for any prior Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the any Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) and except as otherwise provided in this Section 2.3above, the all other terms and conditions applicable to any Incremental Term Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Administrative Agent and the Borrower.;
(bG) Each notice from Borrowers pursuant to this Section 2.3 in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each a Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.joinder agreement):
Appears in 1 contract
Sources: Credit Agreement (Cree, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrower may from time to time in consultation with the Administrative Agent, on any Business Day prior to the contrary contained in this Agreement and provided all Termination Date so long as no Event of Default exists, increase the aggregate amount of the conditions Commitments by delivering a Commitment Amount Increase Request at least 10 Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) identifying the additional Commitments for existing Lender(s) agreeing to increase its/their Commitment(s) (or identifying one or more additional Lender(s) and the amount of its/their Commitment(s)); provided, however, that (i) the aggregate of all Commitment Amount Increases shall not exceed $145,000,000, (ii) the aggregate amount of the Commitments shall not at any time exceed $300,000,000, (iii) any increase of the aggregate amount of the Commitments shall be in an amount not less than $10,000,000 and (iv) if the Borrower invites additional Lenders to join this Agreement, such additional Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The effective date of any Commitment Amount Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, or the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 7.1(c12.12) have been satisfied, upon notice of the outstanding Revolving Loans to Agent (which shall promptly notify the Lenders and providing the Eligible Financial Institutions)Commitment Amount Increase so that, Borrowers mayafter giving effect to such assignments, prior each Lender (including the Lenders providing the Commitment Amount Increase) will hold Revolving Loans equal to its Percentage of all outstanding Revolving Loans. The Borrower agrees to pay any reasonable expenses of the Administrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the earlier of the Revolving Credit Maturity Date contrary, no Lender shall have any obligation to increase its Commitment and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit no Lender’s Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanwithout its consent thereto, and (in consultation with Agent) shall specify the time period within which each Lender may at its option, unconditionally and each Eligible Financial Institutionwithout cause, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined decline to increase its commitmentCommitment. At such time, The Borrower shall have no obligation to offer any Lender the opportunity to participate in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseany Commitment Amount Increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrowers may from time to time after the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice Original Closing Date elect to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of increase the Revolving Credit Maturity Date Commitments (“Increased Commitments”) or enter into one or more Classes of term loans (each, an “Incremental Term Loan”), in each case in an aggregate principal amount of not less than $25.0 million so long as, after giving effect thereto, the aggregate amount of all such Increased Commitments and the all such Incremental Term Loan Maturity Date, request on up Loans does not exceed $125.0 million. The Borrowers may arrange for any such increase or Class to three occasions be provided by one or more Lenders (each Lender so agreeing to an increase in the Total its Revolving Credit Commitment Commitment, or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 participate in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"“Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”) not currently a Lender; provided that:
that each Augmenting Lender (iand, in the case of an Increased Commitment, each Increasing Lender) the final maturity date of any Incremental Term Loan shall be no earlier than subject to the Term Loan Maturity Date;
approval of the Parent Borrower and the Administrative Agent (iisuch consents not to be unreasonably withheld) the Revolving Credit Maturity Date shall not be modified by the increase and, in the Revolving Credit Commitment with the Incremental Revolving Loan case of an Increased Commitment;
, each Issuing Bank and Swingline Lender (iii) the interest rate margins and, subject such consents not to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutionsunreasonably withheld). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without Without the consent of any Lenders other than the relevant Increasing Lenders or Augmenting Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerParent Borrower (without the consent of any other Loan Party), to effect the provisions of this Section 2.32.12. Increased Commitments and Incremental Term Loans created pursuant to this Section 2.12 shall become effective on the date agreed by the Parent Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments and no Incremental Term Loan shall be permitted under this clause unless (i) on the proposed date of the effectiveness of such increase in the Revolving Credit Commitments or borrowing of such Incremental Term Loan, the conditions set forth in Section 6.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Parent Borrower, (ii) the Parent Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming that any Increased Commitments were fully drawn) with Section 9.14 and the Financial Covenants, (iii) the Parent Borrower shall have delivered or caused to be delivered legal opinions and other documents reasonably requested by the Administrative Agent in connection with any such transaction and (iv) the Senior Secured Leverage Ratio of the Parent Borrower, calculated on a Pro Forma Basis (assuming that any Increased Commitments were fully drawn), is less than or equal to 3.40:1.00. On the effective date of any increase in the Revolving Credit Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of all the Lenders to equal each such Lender’s pro rata share of such outstanding Loans, and (ii) on the date of such increase, (a) if there are Revolving Credit Loans then outstanding, the Borrowers shall prepay such Revolving Credit Loans (and pay any additional amounts required pursuant to Section 5.03 in connection therewith), and borrow Revolving Credit Loans from the relevant Increasing Lender(s) and/or Augmenting Lender(s), as shall be necessary in order that, after giving effect to such prepayments and borrowings, all Revolving Credit Loans will be held ratably by the Revolving Credit Lenders (including the relevant Increasing Lender(s) and/or Augmenting Lender(s)) in accordance with their respective Revolving Credit Commitments after giving effect to the applicable Increased Commitment(s) and (b) if there are Swingline Loans or Letters of Credit then outstanding, the participations of the Revolving Credit Lenders in such Swingline Loans or Letters of Credit, as the case may be, will be automatically adjusted to reflect the Revolving Credit Percentage Shares of all the Revolving Credit Lenders (including each relevant Increasing Lender and/or Augmenting Lender) after giving effect to the applicable Increased Commitment(s). The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 5.03 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the amendment to this Agreement providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any optional or mandatory prepayment hereunder, (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; provided that if the Yield of any Incremental Term Loans exceeds the Yield of the Term Loans by more than 50 basis points, then the Applicable Margin for the Term Loans shall be increased to the extent required so that the Yield of any such Class or Classes of Term Loans is equal to the Yield of such Incremental Term Loans minus 50 basis points and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above) shall be the same as the terms of the then outstanding Term Loans except to the extent such covenants and other terms apply solely to any period after the Term Loan Maturity Date. Any Increased Commitments shall be on the same terms and conditions as the existing Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Revolving Credit Commitments, provide an Increased Commitment or provide a commitment with respect to an Incremental Term Loan pursuant to this Section and any election to do so shall be in the sole discretion of such Lender.
(b) This Section 2.12 shall override any provisions in Section 12.04 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrower may, by written notice to the contrary contained in this Agreement Administrative Agent at any time after the Effective Date and provided all prior to the Latest Maturity Date, on one or more occasions (but not more than three), request to incur one or more Incremental Term Loan Commitments and/or increase the aggregate amount of the conditions Revolving Facility by obtaining one or more Incremental Revolving Credit Commitments, in an aggregate principal amount not to exceed $100,000,000, from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and solely with respect to any Incremental Revolving Credit Lender, each LC Issuer and the Swing Line Lender, in each case in their respective reasonable discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Such notice shall set forth in Section 7.1(c(i) have been satisfied, upon notice to Agent the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall promptly notify the Lenders be in minimum increments of $1,000,000 and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 10,000,000), (ii) the date on each occasion which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and not (iii) whether such Incremental Term Loan Commitments are to exceed $50,000,000 in the aggregate (any such increase in be Term Commitments or commitments to make term loans with terms different from the Term Loan AmountLoans (“Other Term Loans”); provided that (a) no commitment of any Lender may be increased without consent of such Lender, and (b) except as otherwise agreed by the Lenders (in their sole discretion) providing the Incremental Facility in connection with an "acquisition or other Investment permitted under this Agreement, no Default or Event of Default exists immediately before or after giving effect thereto. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans; provided that the Borrower may increase the pricing of the Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional upfront fees.
(b) The Borrower and each Incremental Term Loan" Lender shall execute and any deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such increase in other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment an "of such Incremental Revolving Credit Lender. Each Incremental Term Loan Commitment" Assumption Agreement and such loan an "Incremental Revolving Loan" and together with Credit Assumption Agreement shall specify the terms of the Incremental Term LoanLoans or Incremental Revolving Loans, each an "Incremental Loan")as applicable, provided that:
to be made thereunder; provided, that (i) the final maturity date of any Incremental Other Term Loan Loans shall be no earlier than the Term Loan Latest Maturity Date;
, (ii) the Revolving Credit Maturity Date average life to maturity of any Other Term Loans shall not be modified by no shorter than the increase in average life to maturity of the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
Term Loans, (iii) until the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loandate that is 18 months after the Effective Date, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that Other Term Loans, if the interest rate Initial Yield on such Other Term Loans exceeds by more than 50 basis points the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or Loans (the Revolving Loans, amount of such excess above 50 basis points being referred to herein as applicablethe “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four, (iv) the Incremental Term Loans shall be denominated in Dollars, and (v) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the other Credit Facilities or may be unsecured. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of its Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. For the avoidance of doubt, any Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable amendment documenting such Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving LoansCredit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, shall evidenced thereby as provided for in Section 10.12. Any such deemed amendment may be increased so that memorialized in writing by the interest rate margin in respect of such loan is equal Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the interest rate margin for other parties hereto. For the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3avoidance of doubt, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms none of the Term Loan, Borrower or Revolving Loan, as applicable, its Subsidiaries or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to their respective Affiliates may provide any Incremental Revolving Credit Commitment or Incremental Term Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 7.07.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall become be ratably increased by the aggregate principal amount of such Incremental Term Loans under this Agreement, and Loans.
(e) On the effective date of any Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriateCredit Commitments, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement Administrative Agent may take any and the other Transaction Documents all action as may be reasonably necessary to ensure that, upon the effectiveness of such Incremental Revolving Credit Commitments, (i) Revolving Loans made under such Incremental Revolving Credit Commitments are included in each Borrowing of outstanding Revolving Loans on a pro rata basis and (ii) the Lender providing such Incremental Revolving Credit Commitments shares ratably in the Aggregate Revolving Facility Exposure. Each of the Revolving Lenders shall participate in any new Revolving Loans made on or appropriateafter such date on a pro rata basis based upon such Lender’s Revolving Facility Percentage after giving effect to the increase in Revolving Commitments contemplated by Section 2.17. On the effective date of any Incremental Revolving Credit Commitments, each Lender providing any such additional Revolving Commitments (i) will be deemed to have purchased a participation in each then outstanding Letter of Credit on a pro rata basis based upon such Lender’s Revolving Facility Percentage of such Letters of Credit and the participation of each other Revolving Lender in such Revolving Facility Letters of Credit shall be adjusted accordingly and (ii) will acquire, (and will pay to the Administrative Agent, for the account of each Lender, in the reasonable opinion immediately available funds, an amount equal to) its pro rata share based upon such Lender’s Revolving Facility Percentage of the Agent and the Borrower, to effect the provisions of this Section 2.3outstanding Revolving Facility LC Participation.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
Increase in Commitments. (a) Notwithstanding anything Borrower shall have the option, without the consent of the Lenders, to cause a single increase in the Term Commitment by adding, subject to the contrary prior approval of Administrative Agent (such approval not to be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (collectively, the "New Term Lenders") or by allowing one or more Lenders to increase their respective Term Commitments; provided however that: (i) prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (ii) no such increase shall cause the Term Commitment to exceed $725,000,000, (iii) no Lender's Term Commitment shall be increased without such Lender's consent, (iv) such increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Term Lenders, if any, and Lenders increasing their Term Commitments, if any, and which shall indicate the amount and allocation of such increase in the Term Commitment and the effective date of such increase (the "Term Loan Increase Effective Date"), and (v) Borrower shall use all proceeds of such increase (A) to finance all or a portion of the purchase price of the TXU Fuel Acquisition and (B) to pay the out-of-pocket expenses incurred and fees payable in respect of the TXU Fuel Acquisition and this Agreement. Subject to the terms and conditions hereof (including Section 10.14) and provided that the aggregate amount of all Term Loans does not exceed the total Term Commitment, (i) each New Lender agrees to make a Term Loan to Borrower on the Term Loan Increase Effective Date in the amount of such Lender's Term Commitment set forth on the revised Lender Schedule, and (ii) each existing Lender agrees to make a Term Loan to Borrower on the Term Loan Increase Effective Date in the amount of the increase, if any, in such Lender's Term Commitment.
(b) Borrower shall have the option, without the consent of the Lenders, from time to time to cause one or more increases in the Revolver Commitment by adding, subject to the prior approval of Administrative Agent (such approval not to be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (collectively, the "New Revolver Lenders", and together with the New Term Lenders, the "New Lenders") or by allowing one or more Lenders to increase their respective Revolver Commitments; provided however that: (i) 004726 000020 DALLAS 1786243.3 SECOND AMENDED AND RESTATED CREDIT AGREEMENT [CONFORMED THROUGH AUGUST 2004] prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (ii) no such increase shall cause the Revolver Commitment to exceed $225,000,000, (iii) no Lender's Revolver Commitment shall be increased without such Lender's consent, and (iv) such increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Revolver Lenders, if any, and Lenders increasing their Revolver Commitments, if any, and which shall indicate the amount and allocation of such increase in the Revolver Commitment and the effective date of such increase (the "Revolver Loan Increase Effective Date"). Borrower shall borrow and prepay Revolver Loans on each Revolver Loan Increase Effective Date (and pay any additional amounts required pursuant to Section 3.6) to the extent necessary to keep the outstanding Revolver Loans of each Lender ratable with such Lender's revised Revolver Percentage after giving effect to any nonratable increase in the Revolver Commitments under this Section 2.13(b).
(c) As a condition precedent to each increase pursuant to subsections (a) and (b) above, Borrower shall deliver to Administrative Agent a certificate of each Restricted Person dated as of the Term Loan Increase Effective Date or Revolver Loan Increase Effective Date, as applicable (each an "Increase Effective Date"), signed by a Co-Chief Executive Officer of such Restricted Person (i) certifying and attaching the resolutions adopted by such Restricted Person approving or consenting to such increase, (ii) certifying that each of the conditions to such increase set forth in Section 2.13(a) or (b), as applicable, shall have occurred and been complied with, and (iii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in this Agreement and provided the other Loan Documents made by it are true and correct in all material respects on and as of the conditions set forth in Section 7.1(c) have been satisfiedIncrease Effective Date after giving effect to such increase, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of the Revolving Credit Maturity Date such earlier date, and the Term Loan Maturity (B) no Default or Event of Default exists.
(d) On each Increase Effective Date, request on up Administrative Agent shall provide to three occasions an increase in Borrower and each Lender a revised Lender Schedule reflecting the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loanschanges, as applicable, then in the Applicable Margin for Revolver Commitment and/or the Term Loan or Commitment, each Lender's Revolver Percentage, and/or each Lender's Percentage Share resulting from such increase. On each Increase Effective Date, Borrower shall execute and deliver a Revolver Note (in the Revolving Loansform of Exhibit A-1 with appropriate insertions) and/or a Term Note (in the form of Exhibit A-2 with appropriate insertions), as applicable, shall be increased so that the interest rate margin in respect of such loan is equal payable to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms order of each New Lender and conditions applicable each existing Lender that has agreed to any Incremental Loan shall be generally consistent with the terms of the increase its Revolver Commitment and/or Term Loan, or Revolving LoanCommitment, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) . Each notice from Borrowers financial institution that becomes a New Lender pursuant to this Section 2.3 shall set forth 2.13 by the requested amount and, subject execution and delivery to subsection (a) of this Section 2.3, proposed terms Administrative Agent of the Incremental Loanapplicable Commitment Increase Supplement, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join a "Lender" for all purposes under this Agreement as Lenders hereunder for on the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "applicable Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $50,000,000; provided that, without the prior written consent of all of the Lenders, (a) Notwithstanding anything the sum of (1) the Aggregate Commitment and (2) the Five-Year Aggregate Commitment shall at no time exceed $400,000,000 minus the aggregate amount of all reductions in (x) the Aggregate Commitment previously made pursuant to Section 2.5(A) and (y) in the Five-Year Aggregate Commitment previously made in accordance with and pursuant to the contrary contained in this Agreement and provided all relevant provisions of the conditions set forth in Section 7.1(cFive-Year Credit Agreement; (b) have been satisfied, upon notice to Agent (which the Company shall promptly notify not make any such request during the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase six month period following any reduction in the Total Revolving Credit Aggregate Commitment or previously made pursuant to Section 2.5(A); (c) the Term Loan Amount by Company shall not be entitled to make more than one such request during any calendar year; and (d) each such request shall be in a minimum amount of at least $15,000,000 on each occasion 25,000,000 and not to exceed increments of $50,000,000 1,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan excess thereof. Such request shall be no earlier than made in a written notice given to the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers Administrative Agent and the Lenders under such Incremental Loan provided that if by the interest rate margin in respect of any Incremental Loan exceeds Company not less than twenty (20) Business Days prior to the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect proposed effective date of such loan is equal to the interest rate margin for the Incremental Loan; and
increase, which notice (iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agenta "Commitment Increase Notice") shall specify the time period within which amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender and each Eligible Financial Institution, shall have any obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is requested to respond (which shall in no event be less than fifteen (15) Business Days from after receipt of the date of delivery of Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Lenders and the Eligible Financial InstitutionsAdministrative Agent being herein a "Lender Increase Notice"). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender which does not responding within submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its commitmentCommitment. At such timeIn the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and each Arranger shall have the right, in accordance consultation with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the BorrowerCompany, to effect the provisions of this Section 2.3.allocate the
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything If the Borrower shall have terminated all or a portion of the Tranche A Commitments and repaid all or a portion of the outstanding Tranche A Term Loans prior to or simultaneously with the consummation of any Commitment increase pursuant to this Section, the Borrower may, by written notice to the contrary contained Administrative Agent executed by the Borrower and one or more banks or other financial institutions (any such bank or other financial institution referred to in this Agreement clause (a) being called an "Augmenting Lender"), which may include any Lender, (i) at any time during the Tranche A Availability Period, cause the Tranche A Commitments of the Augmenting Lenders to be increased (or cause Tranche A Commitments to be extended by the Augmenting Lenders, as the case may be) and/or (ii) at any time prior to the Revolving Credit Maturity Date, cause the Revolving Credit Commitments of the Augmenting Lenders to be increased (or cause Revolving Credit Commitments to be extended by the Augmenting Lenders, as the case may be), in each case in an amount for each Augmenting Lender set forth in such notice and not less than $5,000,000; provided, that the total amount by which the Commitments may be -------- increased pursuant to this Section shall be limited to the aggregate amount by which the Tranche A Commitments shall have been reduced and the Tranche A Term Loans repaid; provided further, that each Augmenting Lender, if not already a -------- ------- Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Lender hereunder. Increases and new Commitments created pursuant to this clause (a) shall become effective on the date specified in the notice delivered pursuant to this paragraph. Each existing Lender whose Commitment is not increased pursuant to this Section is hereby referred to as a "Non-Increasing Lender". Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under this paragraph unless, (i) on the date of such increase, the conditions set forth in Section 7.1(c4.01 shall be satisfied (with all references in such paragraphs to a Credit Event being deemed to be references to such increase) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Institutions), Borrowers may, prior to the earlier Officer of the Revolving Credit Maturity Date Borrower, and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date Administrative Agent shall not be modified by have received (with sufficient copies for each of the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iiiLenders) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally documents consistent with those delivered on the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent Closing Date under clauses (a) and the Borrower.
(b) Each notice from Borrowers pursuant of Section 4.02 as to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms corporate power and authority of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested Borrower to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice borrow hereunder after giving effect to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $250,000,000; provided that, without the prior written consent of the Required Lenders, (a) Notwithstanding anything to the contrary contained in this Agreement and provided Aggregate Commitment shall at no time exceed $900,000,000 minus the aggregate amount of all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase reductions in the Total Revolving Credit Aggregate Commitment or previously made pursuant to Section 2.5(a); (b) the Term Loan Amount by Company shall not be entitled to make more than one such request during any calendar year; and (c) each such request shall be in a minimum amount of $15,000,000 on each occasion and not to exceed at least $50,000,000 and increments of $5,000,000 in excess thereof, and shall be in an amount such that the aggregate principal amount of Loans to a Dutch Borrower which are purchased by a Proposed New Lender (other than a Proposed New Lender which is a Professional Market Party) pursuant to Section 2.5(b)(ii) shall not be less than the equivalent in Dollars (calculated on the basis of the Spot Rate of the Administrative Agent as of the date of such purchase) of €100,000 in respect of each Dutch Borrower which then has outstanding borrowings hereunder. Such request shall be made in a written notice given to the Administrative Agent and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the aggregate Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have any obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and each Arranger shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company’s Commitment Increase Notice. In the event that the increases of Commitments set forth in the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not be unreasonably withheld). If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Company shall have obtained the consent thereto of each Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (C) the Borrowers, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Term Loan AmountAggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit L hereto, (D) counsel for the Company and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrowers and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article V or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Company. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Company and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder and thereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment and (2) each Proposed New Lender that is allocated an "Incremental Term Loan" Effective Commitment Amount in connection with any Commitment Increase Notice and any (b) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Aggregate Commitment" and such loan an "Incremental Revolving Loan" and together with . Effective on the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity effective date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Aggregate Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject pursuant to clause (i) above, amortization with respect each Selling Lender hereby sells, grants, assigns and conveys to any Incremental Term Loaneach Buying Lender, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect without recourse, warranty, or representation of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loanskind, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise specifically provided herein, an undivided percentage in this Section 2.3such Selling Lender’s right, title and interest in and to its outstanding Loans and L/C Obligations in the terms respective Dollar Amounts and conditions applicable to any Incremental Loan percentages necessary so that, from and after such sale, each such Selling Lender’s outstanding Loans and L/C Obligations shall be generally consistent with equal such Selling Lender’s Pro Rata Share (calculated based upon the terms Effective Commitment Amounts) of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to outstanding Loans and L/C Obligations. Effective on the Agent and effective date of the Borrower.
(b) Each notice from Borrowers increase in the Aggregate Commitment pursuant to this Section 2.3 shall set forth the requested amount andclause (i) above, subject to subsection (a) of this Section 2.3each Buying Lender hereby purchases and accepts such grant, proposed terms of the Incremental Loan, assignment and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days conveyance from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agreesSelling Lenders. Each Buying Lender shall notify Agent within such time period whether or not it hereby agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than that its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder respective purchase price for the portion of the Incremental Loan not taken by existing Lenders. Agent outstanding Loans and L/C Obligations purchased hereby shall notify Borrowers equal the respective Dollar Amount necessary so that, from and after such payments, each Lender Buying Lender’s outstanding Loans and L/C Obligations shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Lenders’ outstanding Loans and Eligible Financial Institutions' responses to each request made hereunderL/C Obligations. Agent and Borrowers Such amount shall determine be payable on the effective date (of the "Increase Effective Date") increase in the Aggregate Commitment by wire transfer of immediately available funds to the Administrative Agent. The Administrative Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the final allocation Loans and L/C Obligations being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such increase.
(c) Incremental Term Loans shall become Term and L/C Obligations, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the portion of the outstanding Loans under this Agreementand L/C Obligations being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and Incremental Revolving Loans shall become Revolving Loans under will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, or the other Transaction Loan Documents. Subject The Company hereby agrees to Section 13.2compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Incremental sale and assignment of any Eurodollar Loan Amendment may, without hereunder on the consent of Lenders, effect such amendments to this Agreement terms and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this manner as set forth in Section 2.34.4.
Appears in 1 contract
Sources: Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Increase in Commitments. (a) Notwithstanding anything At any time, Borrower may by written notice to the contrary contained in this Agreement Administrative Agent and provided all without the consent of the conditions set forth other Lenders hereunder request an increase to the existing Revolving Commitments (any such increase, an “Incremental Revolving Commitment”) or commitments to make additional Term B Loans (any such increase, an “Incremental Term B Commitment”). The Incremental Revolving Commitments and the Incremental Term B Commitments (collectively, the “Incremental Commitments”) shall be in Section 7.1(cminimum amounts of at least $5.0 million and the aggregate amount of all Incremental Commitments shall not exceed $75.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which Borrower proposes that the Incremental Commitments be made available, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent, and the amount of each Class of Incremental Commitment. The Administrative Agent shall notify Borrower in writing of the identity of each Lender or other financial institution reasonably acceptable to the Administrative Agent (each, an “Incremental Lender”) to whom the Incremental Commitments have been satisfied, upon notice to Agent (which shall promptly notify the Lenders allocated and the Eligible Financial Institutions)amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, Borrowers mayin its sole discretion, prior to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing or would result after giving effect to the earlier making of such Incremental Commitments and Loans or the application of the Revolving Credit Maturity Date and the Term Loan Maturity Dateproceeds therefrom, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any 2) such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan Commitments shall be no earlier than evidenced by one or more joinder agreements (the Term Loan Maturity Date;
(ii“Increase Joinder”) the Revolving Credit Maturity Date shall not be modified executed by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3Borrower, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Administrative Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ making such Incremental Commitment, in form and Eligible Financial Institutions' responses substance satisfactory to each request made hereunderof them. Agent and Borrowers shall determine the effective date (the "The Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.22, and each shall be recorded in the register, each of which shall be subject to the requirements set forth in Section 2.15(e). In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans or Term B Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to Incremental Revolving Commitments and Loans made pursuant to Incremental Term B Commitments (“Incremental Term Loans”), respectively, made pursuant to this Agreement.
(b) The terms and provisions of Loans made pursuant to the Incremental Commitments shall be as follows:
(i) the terms and provisions of Incremental Term Loans shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Term B Loans (it being understood that Incremental Term Loans may be part of an existing tranche of Term Loans);
(ii) the terms and provisions of Revolving Loans made pursuant to Incremental Revolving Commitments shall be identical to the Revolving Loans;
(iii) the weighted average life to maturity of all Incremental Term Loans shall be no shorter than the weighted average life to maturity of the Revolving Loans and the existing Term B Loans;
(iv) the maturity date of Incremental Term Loans shall not be earlier than the Term B Maturity Date;
(v) the Applicable Margins for the Incremental Term Loans shall be determined by Borrower and the applicable Incremental Lenders; provided, however, that the Applicable Margins for the Incremental Term Loans shall not be greater than the highest Applicable Margins that may, under any circumstances, be payable with respect to Term B Loans plus 50 basis points (and the Applicable Margins applicable to the Term B Loans shall be increased to the extent necessary to achieve the foregoing).
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Lenders shall assign to each of the Incremental Lenders having an Incremental Revolving Commitment (the “Incremental Revolving Lenders”), and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit and Swingline Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swingline Loans being held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Commitments and all matters relating thereto. Borrower shall make any payments required pursuant to Section 2.13 in connection with any adjustment of Revolving Loans pursuant to this Section 2.22(b). Assignments made to effect this Section 2.22(b) shall be made in accordance with Section 11.04. The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Revolving Commitments and the Incremental Revolving Lenders.
(d) On any Increased Amount Date on which Incremental Term B Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 4.02, (i) each Incremental Lender having an Incremental Term B Commitment shall make Term B Loans to Borrower in the amount of its Incremental Term B Commitment, and (ii) each Incremental Term B Lender shall become a Lender with respect to its Incremental Term B Commitment and all matters relating thereto.
(e) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders.
Appears in 1 contract
Increase in Commitments. (a)
(a) Notwithstanding anything Upon notice to the contrary contained Administrative Agent, at any time after the Effective Date, the Borrower may request that Additional Revolving Credit Commitments be provided by the existing Lenders (in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutionsaccordance with their Pro Rata Share), Borrowers may, prior and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the earlier of Administrative Agent within 10 Business Days after Borrower’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Maturity Date Commitments and/or (y) the Borrower may identify one or more financial institutions which are not existing Lenders (and which are not Loan Parties or Affiliates of Loan Parties) that are reasonably acceptable to the Term Loan Maturity Date, request on up Administrative Agent to three occasions an increase in the Total provide such Additional Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), Commitments; provided that:
that (i) after giving effect to any such Additional Revolving Credit Commitments, the final maturity date aggregate amount of any Incremental Term Loan Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall be no earlier than the Term Loan Maturity Date;
not exceed $125,000,000, (ii) the each request for Additional Revolving Credit Maturity Date Commitments shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
minimum increments of $20,000,000, (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, Borrower shall not make more than five such requests for any Incremental Loan shall be determined by the Borrowers Additional Revolving Credit Commitments and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of any Additional Revolving Credit Advances shall be the Term Loansame as those for the existing Revolving Credit Advances, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory except that the Borrower shall be permitted to pay upfront fees to the Agent and Additional Revolving Credit Lenders in amounts to be agreed. Notwithstanding anything contained herein to the Borrowercontrary, the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments.
(b) Each notice from Borrowers pursuant Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender 2.18 shall be obligated added to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower shall deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an "Incremental earlier date (in which case such representations and warranties are true on and of such earlier date) and without duplication of any materiality qualifiers applicable thereto, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Amendment"Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably request, in order to enable the Agents and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board. On each Additional Revolving Credit Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) to shall become a “Revolving Credit Lender” for all purposes of this Agreement and, as appropriate, and the other Transaction Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all purposes of this Agreement and the other Loan Documents. Subject to Section 13.2, the Incremental Loan .
(c) Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of Lendersany Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriatereasonably necessary, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Revolving Credit Commitment. ARTICLE III—Article III
Appears in 1 contract
Increase in Commitments. Prior to the Maturity Date and upon at least 45 days’ prior written notice to the Administrative Agent (which notice shall be promptly transmitted by the Administrative Agent to each Lender), the Borrower shall have the revocable right, from time to time during the term of this Agreement and subject to the terms and conditions set forth below, to increase the aggregate amount of the Aggregate Commitments; provided that (a) Notwithstanding anything to no Default or Event of Default shall exist at the contrary contained in this Agreement and provided all time of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify request or the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an proposed increase in the Total Revolving Credit Commitment or the Term Loan Amount by Aggregate Commitments, (b) any such increase must be in a minimum amount of $15,000,000 on each occasion 25,000,000 and in integral multiples of $5,000,000 above such amount, (c) the sum of any increases to the Revolving Loan Commitment during the term of this Agreement shall not exceed THREE HUNDRED MILLION DOLLARS ($300,000,000), (d) no individual Lender’s Commitment may be increased without such Lender’s written consent, (e) the Borrower shall execute and deliver such Note(s) as are necessary to exceed $50,000,000 reflect the increase in the aggregate respective Commitments, (f) Schedule 1.1 shall be amended to reflect the revised Commitments and revised Applicable Percentages of the Lenders and (g) if any Loans are outstanding at the time of an increase in the Aggregate Commitments, the Borrower will prepay (provided that any such prepayment shall not be subject to any minimum amount of prepayment or any requirements regarding pro rata repayments but shall be subject to Section 3.5) one or more existing Loans in an amount necessary such that after giving effect to the increase in the Aggregate Commitments each Lender will hold its pro rata share (based on its share of the revised Aggregate Commitments) of outstanding Loans. Any such increase in the Term Loan AmountAggregate Commitments shall apply, an "Incremental Term Loan" and any such increase in at the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date option of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect (x) the Commitment of one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto and if more than one Lender wishes to participate then such increase shall be allocated pro rata among such Lenders (based on the amount that each such Lender was willing to increase its Commitment) and/or (y) a new Commitment for one or more institutions that is not an existing Lender so long as such institution (A) conforms to the definition of Eligible Assignee, (B) is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (C) receives a Commitment of at least $5,000,000 and (D) becomes a Lender under this Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Agreement in a manner acceptable to the Borrower and the Administrative Agent. This Section shall supersede any provisions of this in Section 2.32.13 or 10.6 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrower may, by written notice to the contrary contained Agent from time to time, request Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments in this Agreement and an aggregate amount not to exceed the Incremental Revolving Credit Amount from one or more Incremental Lenders, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided all that (i) each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the conditions Agent (which approval shall not be unreasonably withheld) and (ii) in no event shall any Incremental Revolving Credit Commitments or Other Revolving Credit Commitments become effective if (x) prior to the Restructuring Date, the effectiveness of such commitments would cause the aggregate amount of Revolving Credit Commitments and Other Revolving Credit Commitments to exceed the principal amount of the Loans guaranteed by the Parent Guarantor pursuant to the Parent Guaranty and (y) the Agent has not received customary legal opinions, board resolutions and other customary closing certificates and closing documentation as required by the relevant Incremental Revolving Credit Assumption Agreement and, to the extent required by the Agent, consistent with those required to be delivered in connection with a Borrowing pursuant to Section 4.01 if prior to the Restructuring Date or Section 4.03 if on or after the Restructuring Date, and such additional customary documents and filings as the Agent may reasonably require. Such notice shall set forth (i) the amount of the Incremental Revolving Credit Commitments or Other Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Revolving Credit Amount), (ii) the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Agent) and (iii) whether the Borrower is requesting Incremental Revolving Credit Commitments or commitments to make revolving loans with terms different from the Revolving Loans (“Other Revolving Loans”). Without limiting the foregoing, as a further condition precedent to the effectiveness of any Incremental Revolving Credit Commitment and/or Other Revolving Credit Commitment, the Borrower shall deliver to the Agent a certificate of the Borrower dated as of the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to become effective signed by a Financial Officer certifying that, before and after giving effect to such Incremental Revolving Credit Commitment and/or Other Revolving Credit Commitment, (x) the representations and warranties set forth in Article III hereof (other than (1) prior to the Restructuring Date, Section 7.1(c3.04, Section 3.16 and Section 3.17, and (2) have been satisfiedon or after the Restructuring Date, upon Section 3.04) and in each other Loan Document are true and correct in all material respects on and as of the date thereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (y) no Event of Default, or event or condition that would constitute an Event of Default but for the requirement that notice be given or time elapse or both, has occurred and is continuing.
(b) The Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the approval of the Agent (which approval shall promptly notify the Lenders and the Eligible Financial Institutionsnot be unreasonably withheld), Borrowers mayadditional banks, prior financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment or the Other Revolving Credit Commitments, as applicable, of such Incremental Lender. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans or Other Revolving Loans to be made thereunder; provided that, without the prior written consent of all Lenders, (i) the final maturity of any Other Revolving Loans shall be no earlier of than the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) prior to the Restructuring Date, the aggregate amount of Revolving Credit Maturity Date Commitments and Other Revolving Credit Commitments shall not be modified at any time exceed the principal amount of the Loans guaranteed by the increase in Parent Guarantor pursuant to the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;Parent Guaranty.
(iiic) the interest rate margins and, subject to clause (i) above, amortization The Applicable Rate with respect to any Incremental Term Loan, for any Incremental Loan Revolving Loans shall be determined by the Borrowers same as the Applicable Rate for the existing Revolving Loans and the Lenders under Applicable Rate with respect to any Other Revolving Loans shall not be greater than the Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans may be increased (but may not be decreased) to equal the Applicable Rate for such Incremental Loan provided that if Revolving Loans or such Other Revolving Loans to satisfy the interest rate margin in respect requirements of this paragraph (c). The other terms of any Incremental Loan exceeds Revolving Loans shall be the Applicable Margin for same as the Term Loan or terms of the other Revolving Loans, as applicable, then . The other terms of any Other Revolving Loans and the Applicable Margin for Term Loan or the Incremental Revolving Loans, as applicable, shall be increased so that the interest rate margin Credit Assumption Agreement in respect of such loan is equal thereof, to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally extent not consistent with the terms of applicable to the Term LoanRevolving Loans hereunder, or Revolving Loan, as applicable, or as shall otherwise be reasonably satisfactory to the Agent and, to the extent that such Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or are more favorable to the Lenders making such Other Revolving Loans, the existing Lenders shall be entitled to the benefit of such rights and the Borrower.
(b) Each notice from Borrowers pursuant to provisions so long as such Other Revolving Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Section 2.3 shall Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the requested amount andpart of any Person effective as of the date of such Incremental Revolving Credit Assumption Agreement. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, subject upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to subsection the extent (abut only to the extent) of this Section 2.3, proposed necessary to reflect the existence and terms of the Incremental Loan, Revolving Credit Commitments or Other Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower's consent (not to be unreasonably withheld) and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice furnished to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseother parties hereto.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (ai) Notwithstanding anything So long as no Event of Default has occurred and is continuing or would result therefrom, from time to time after the Agreement Date and on or before June 2, 2008, Borrower may, upon at least 30 days’ written notice to the contrary contained in this Agreement and provided all Administrative Agent (who shall promptly provide a copy of the conditions set forth in Section 7.1(c) have been satisfied, upon such notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutionseach Lender), Borrowers may, prior propose to the earlier of increase the Revolving Credit Maturity Date and Loan Commitments by an amount not to exceed $25,000,000 (the Term Loan Maturity Dateamount of any such increase, the “Additional Commitment Amount”); provided, however, the Borrower shall not be permitted to request on up to three occasions an increase in the Total Revolving Credit Loan Commitments more that three (3) time during the term of this Agreement. Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Loan Commitment or the Term Loan Amount by a minimum principal amount equal to the product of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) its Revolving Commitment Ratio, multiplied by (ii) the final maturity date of Additional Commitment Amount. No Lender (or any Incremental Term successor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to increase its Revolving Loan Commitment shall be no earlier than the Term Loan Maturity Date;made in its sole discretion independently from any other Lender.
(ii) the Revolving Credit Maturity Date If any Lender shall not be modified by the elect to increase in the Revolving Credit Commitment with the Incremental its Revolving Loan Commitment;
(iii) the interest rate margins and, subject Commitment pursuant to clause (i) above, amortization the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Loan Commitment and in the case of any other such Person (an “Additional Lender”), become a party to this Agreement; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Revolving Loan Commitments of the existing Lenders pursuant to this subsection (ii) plus the Revolving Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(iii) An increase in the aggregate amount of the Revolving Loan Commitments pursuant to this Section 2.5(c) shall become effective upon the receipt by the Administrative Agent of an agreement in form and substance satisfactory to the Administrative Agent signed by the Borrower, by each Additional Lender and by each other Lender whose Revolving Loan Commitment is to be increased, setting forth the new Revolving Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to any Incremental Term Loan, for any Incremental the increase in the Revolving Loan shall be determined by the Borrowers Commitments and the Lenders under such Incremental Loan provided that if the interest rate margin in respect opinions of any Incremental Loan exceeds the Applicable Margin counsel for the Term Loan or Borrower and such other documentation with respect to the increase in the Revolving Loans, Loan Commitments as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; andAdministrative Agent may reasonably request.
(iv) except as otherwise provided in this Section 2.3Upon the acceptance of any such agreement by the Administrative Agent, the terms and conditions applicable to any Incremental Revolving Loan Commitments shall automatically be generally consistent with increased by the terms amount of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the BorrowerLoan Commitments added through such agreement.
(bv) Each notice from Borrowers Upon any increase in the aggregate amount of the Revolving Loan Commitments pursuant to this Section 2.3 shall set forth the requested amount and2.5(c) that is not pro rata among all Lenders based on their respective Revolving Commitment Ratios, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) five Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriateDays, in the reasonable opinion case of any Base Rate Advances then outstanding, and at the end of the Agent and then current Eurodollar Advance Period with respect thereto, in the Borrowercase of any Eurodollar Advances then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article IV, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the provisions of this Section 2.3Lenders in such proportion.
Appears in 1 contract
Sources: Credit Agreement (Gtsi Corp)
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, At any time prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, provided no Event of Default shall have occurred and then be continuing, AMB LP may request on up to three occasions an a one-time increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum aggregate amount of $15,000,000 on each occasion the Commitments (subject to (ii) below), either by designating an Eligible Bank not theretofore a Bank to become a Bank (such designation to be effective only with the prior written consent of the Administrative Agent, which consent will not be unreasonably withheld) and/or by agreeing with an existing Bank or Banks that such Bank’s Commitment shall be increased. Upon execution and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" delivery by AMB LP and such loan Bank or other Eligible Bank of an "Incremental Revolving Loan" instrument in form reasonably satisfactory to the Administrative Agent, such existing Bank shall have a Commitment as therein set forth or such Eligible Bank shall become a Bank with a Commitment as therein set forth and together all the rights and obligations of a Bank with the Incremental Term Loan, each an "Incremental Loan"), such a Commitment hereunder; provided that:
(i) AMB LP shall provide prompt notice of such increase to the final maturity date Administrative Agent, who shall promptly notify the Banks; and Table of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;Contents
(ii) the Revolving Credit Maturity Date shall amount of such one time increase does not be modified by cause the Facility Amount to exceed $350,000,000. Upon any increase in the Revolving Credit Commitment with aggregate amount of the Incremental Revolving Loan Commitment;
Commitments pursuant to this Section 2.15, within five (iii5) Business Days (in the interest rate margins and, subject to clause (icase of any Base Rate Loans or Canadian Base Rate Loans then outstanding) above, amortization or at the end of the then-current Interest Period with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by thereto (in the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect case of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Euro-Dollar Loans then outstanding (other than Canadian Base Rate Loans)), as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, each Bank’s Pro Rata Share shall be increased so recalculated to reflect such increase in the Commitments and the outstanding principal balance of the Loans shall be reallocated among the Banks such that the interest rate margin in respect outstanding principal amount of such loan is Loans owed to each Bank shall be equal to such Bank’s Pro Rata Share (as recalculated). All payments, repayments and other disbursements of funds by the interest rate margin for the Incremental Loan; Administrative Agent to Banks shall thereupon and
(iv) except as otherwise provided , at all times thereafter be made in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent accordance with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowereach Bank’s recalculated Pro Rata Share.
(b) Each notice from Borrowers pursuant to this This Section 2.3 2.15 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (supersede any provisions in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice Sections 10.5 or 10.6 to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increasecontrary.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, At any time prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Facility Termination Date, request on up the Borrowers shall have the ability, in consultation with the Agent and through written notice to three occasions an increase the Agent, substantially in the Total Revolving Credit Commitment or form of Exhibit E (the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental LoanIncrease Notice"), to request increases in the Aggregate Commitment (each, a "Requested Commitment Increase"); provided that:
that (i) the final maturity date of no Lender shall have any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
obligation to participate in any Requested Commitment Increase, (ii) the Revolving Credit Maturity Date aggregate principal amount of all such increases shall not exceed $300,000,000, (iii) each such Requested Commitment Increase shall be modified by in a minimum principal amount of $50,000,000 or, if less, the maximum remaining amount permitted pursuant to clause (ii) above, (iv) any such increase shall be allocated pro rata among the PHI Sublimit and the Subsidiary Borrower Sublimit, and (v) no Default or Unmatured Default shall have occurred and be continuing or would result from the proposed Requested Commitment Increase. Any increase in the Revolving Credit Commitment with Subsidiary Borrower Sublimit pursuant to this Section 2.2(a) shall result in a percentage increase in each of the Incremental Revolving Loan Commitment;
(iii) ACE Sublimit, the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers DPL Sublimit and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving LoansPEPCO Sublimit, as applicablerespectively, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for percentage increase in the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the BorrowerSubsidiary Borrower Sublimit.
(b) The Agent shall promptly give notice of such Requested Commitment Increase to the Lenders. Each notice from Borrowers pursuant to this Section 2.3 Lender shall set forth notify the requested amount and, subject to subsection Agent within ten (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days (or such longer period of time which may be agreed upon by the Agent and the Borrowers and communicated to the Lenders) from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees offers to make the requested Incremental Loan, increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loanwhat amount. Any Lender not responding within such time period shall be deemed to have declined to offer to increase its commitmentCommitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. The Agent shall notify the Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. The Borrowers shall have the right at their sole discretion to accept or reject in whole or in part any 16 ________________________________________________________________________________________________________ offered Commitment increase or at their own expense to solicit a Commitment from any third party financial institution reasonably acceptable to the Agent. Any such financial institution (if not already a Lender hereunder) shall become a party to this Agreement, as a Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseBorrowers.
(c) Incremental Term Loans shall become Term Loans under this AgreementUpon the completion of each Requested Commitment Increase, (i) entries in the accounts maintained pursuant to Section 2.15 will be revised to reflect the revised Commitments and Incremental Revolving Loans shall become Revolving Loans under Pro Rata Shares of each of the Lenders (including each new Lender becoming a party to this Agreement pursuant to an amendment clause (an "Incremental Loan Amendment"b) above) and (ii) the outstanding Loans will be reallocated on the effective date of such increase among the Lenders in accordance with their revised Pro Rata Shares and the Lenders (including each new Lender becoming a party to this Agreement and, as appropriate, the other Transaction Documents. Subject pursuant to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, clause (b) above) agree to make all payments and adjustments necessary to effect such amendments to this Agreement reallocation and the other Transaction Documents Borrowers shall pay any and all costs required in connection with such reallocation as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3if such reallocation were a prepayment.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrower may from time to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, time request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum an aggregate amount of $15,000,000 on each occasion and not to exceed $50,000,000 in 50,000,000; provided, that there exists no Default or Event of Default and the aggregate amount of the increase may be incurred as "Priority Indebtedness" under the Indebtedness and other agreements described on Schedule 6.01. The Borrower may request the increase by (any such increase in the Term Loan Amounti) agreeing with one or more existing Lenders (each, an "Incremental Term Loan" and any Assuming Lender") that such increase in the Revolving Credit Lender's Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, shall be increased or (ii) designating one or more Eligible Assignees not theretofore a Lender to become a Lender (each an "Incremental LoanAdditional Lender")) by executing a Joinder Agreement, provided that:
(i) the final maturity date of any Incremental Term Loan which designation shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms approval of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Administrative Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within increase such time period whether or not it agrees to make Lender's Commitment.
(b) If the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Total Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, is increased in accordance with Section 2.4this Section, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and Borrowers the Borrower shall determine the effective date of such increase (the "Increase Effective Date") and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, the Borrower shall repay all of the outstanding Loans (and pay any additional amounts required pursuant to Section 2.14, if any, if the Increase Effective Date is not the last day of any Interest Period applicable to the Loans being repaid) and shall reborrow such Loans from the Lenders, the Additional Lenders and the Assuming Lenders so that the Percentage of each Lender, each Additional Lender and each Assuming Lender in the Total Commitment shall be identical to its Percentage of the outstanding Loans.
(c) Incremental Term Loans As a condition precedent to such increase, the Borrower shall become Term Loans under deliver to the Administrative Agent (i) a Compliance Certificate demonstrating pro forma compliance with the covenants contained in Sections 5.12, 6.02, 6.04, 6.10 and 6.11 and Article VII after giving effect to such increase and (ii) a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by the president, chief executive officer or a Financial Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase and (ii) certifying that, before and after giving effect to such increase, the representations and warranties contained in Article III are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and no Default or Event of Default exists. The Borrower shall deliver new or amended Notes reflecting the increased Commitment of any Lender holding or requesting a Note. The Administrative Agent shall distribute an amended Schedule 2.01 (which shall be deemed incorporated into this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower), to effect reflect any changes therein resulting from such increase.
(d) This Section shall supersede any provisions in Section 2.15 or 10.08 to the provisions of this Section 2.3contrary.
Appears in 1 contract
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than 10 Business Days’ (or such shorter period as may be acceptable to Agent) notice to Agent, as long as (a) Notwithstanding anything to the contrary contained requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 5,000,000 and is offered on each occasion the same terms as existing Commitments, except for a closing fee specified by Borrowers and (b) (i(x) on and after the First Second Amendment Effective Date and prior to the expiration of the First Second Amendment Specified Period, the total increases under this Section do not to exceed $50,000,000 in 0 and (y) after the aggregate Second Amendment Specified Period, the total increases under this Section do not exceed $25,000,000 and (any such increase in y) after the Term Loan AmountFirst Amendment Specified Period, an "Incremental Term Loan" the total increases under this Section do not exceed $35,000,000 and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) no more than five increases are made. Agent shall promptly notify Lenders of the Revolving Credit Maturity Date shall not be modified by the requested increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) 10 Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanthereafter, unless it so agrees. Each each Lender shall notify Agent within if and to what extent such time period whether or not it agrees Lender commits to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than increase its current Applicable Commitment Percentage of such Incremental LoanCommitment. Any Lender not responding within such time period shall be deemed to have declined an increase. If Lenders fail to increase commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. Agent may allocate, in its commitmentdiscretion, the increased Commitments among committing Lenders and, if necessary, Eligible Assignees. At Total Commitments shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments. On the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Abl Loan and Security Agreement (Rocky Brands, Inc.)
Increase in Commitments. (a) Notwithstanding anything After the Closing Date, the Agent may, from time to the contrary contained in this Agreement and provided all time upon five (5) Business Days prior notice by Capital on behalf of the conditions set forth in Section 7.1(cObligors of a request to increase the Aggregate Commitment, increase the Aggregate Commitment by (x) have been satisfied, upon notice to Agent admitting additional Lenders hereunder (which shall promptly notify the Lenders and the Eligible Financial Institutionseach a "Subsequent Lender"), Borrowers may, prior to or (y) increasing the earlier Commitment of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate any Lender (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental LoanIncreasing Lender"), provided thatsubject to the following conditions:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Dateeach Subsequent Lender is an Eligible Assignee;
(ii) Borrowers execute (A) a new Note payable to the Revolving Credit Maturity Date shall not be modified order of a Subsequent Lender, if requested by such Subsequent Lender, or (B) a replacement Note payable to the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitmentorder of an Increasing Lender, if requested by such Increasing Lender;
(iii) each Subsequent Lender executes a signature page to this Agreement;
(iv) after giving effect to the interest rate margins andadmission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, subject to clause the Aggregate Commitment does not exceed $150,000,000;
(iv) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan each increase in the Aggregate Commitment shall be determined by in the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect minimum amount of $5,000,000 or a greater integral multiple of $1,000,000;
(vi) no admission of any Incremental Loan exceeds Subsequent Lender shall increase the Applicable Margin for Commitment of any existing Lender without the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, consent of such existing Lender;
(vii) no Lender shall be increased so that an Increasing Lender without the interest rate margin in respect consent of such loan is equal to the interest rate margin for the Incremental LoanLender; and
(ivviii) except as otherwise provided in this Section 2.3, the terms and conditions applicable no Default or Event of Default exists nor would occur after giving effect to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowersuch increase.
(b) Each notice from Borrowers After the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Agent shall promptly provide to each Lender a new Schedule I to this Agreement. In the event that there are any Revolving Loans and/or Letters of Credit outstanding after giving effect to an increase in the Aggregate Commitment pursuant to this Section 2.3 shall set forth 2.9, upon notice from the requested Agent to each Lender, the amount and, subject of such Revolving Loans owing to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and the amount of each Eligible Financial Institution, is requested Lender's L/C Participation shall be appropriately adjusted to respond (which shall in no event be less than fifteen (15) Business Days from reflect the date new Commitment Percentages of delivery of such notice to the Lenders and the Eligible Financial Institutions(in which case Obligors shall pay any amounts required under Section 4.10). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Subject to the contrary contained terms and conditions set forth herein, the Administrative Borrower shall have the right to request, by written notice to the Administrative Agent, increases in the Legacy Commitments and the ETMC Commitments and/or (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement and provided all of the conditions set forth (v) any Revolving Commitment Increase shall be in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower5,000,000.
(b) Each notice from Borrowers submitted pursuant to this Section 2.3 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall set forth specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the ETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any other Lender declines to participate in the Revolving Commitment Increase) of the requested amount andincrease in Commitments; provided that (i) each applicable Lender may elect or decline, subject in its sole discretion, to subsection (a) of this Section 2.3have its Commitment increased in connection with any requested Revolving Commitment Increase, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in it being understood that no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanincrease its Commitment unless it, unless it in its sole discretion, so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable a Lender fails to respond to any Revolving Commitment Percentage Increase Notice within ten (10) Business Days after such Lender’s receipt of such Incremental Loan. Any request, such Lender not responding within such time period shall be deemed to have declined to increase its commitment. At participate in such timeRevolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and commitments of additional lenders are sought in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment shall be subject to the written consent of the Administrative Agent and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld or delayed), in accordance with each case, if such consent would be required pursuant to Section 2.411.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no L/C Issuer or Swing Line Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), Borrowers such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Administrative Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) (x) no Default or Event of Default would exist after giving effect thereto or (y) if the Revolving Commitment Increase is used to finance a Permitted Acquisition or Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may invite Eligible Financial Institutions reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to join this Agreement the Administrative Agent; (4) the representations and warranties contained in Article VI shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent Increase Date; provided that, if the Revolving Commitment Increase is used to finance a Permitted Acquisition or a Permitted Investment, the representations and warranties shall notify be subject to customary “Sungard” limitations; and (5) the Borrowers and each Lender of shall have paid to the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increasein connection therewith.
(c) Incremental Term Loans On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.14, (i) the Administrative Agent shall become Term effect a settlement of all outstanding Loans under this Agreementthe applicable Revolving Credit Facility among the applicable Lenders that will reflect the adjustments to the Commitments under the applicable Revolving Credit Facility of the applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and Incremental (iv) the Revolving Loans Commitment Increase shall become Revolving rank pari passu in right of payment and security with the existing Loans under this Agreement pursuant the applicable Revolving Credit Facility. Each joinder agreement and any amendment to an amendment (an "Incremental any Loan Amendment") to this Agreement and, as appropriate, Document requested by the other Transaction Documents. Subject to Section 13.2, Administrative Agent in connection with the Incremental Loan Amendment establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be reasonably necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.32.14.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time on or before March 31, 2013, Borrower may by written notice to the contrary contained in this Agreement Administrative Agent and provided all without the consent of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the other Lenders and the Eligible Financial Institutions), Borrowers may, prior hereunder request increases to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Dateexisting Commitments (any such increase, request on up to three occasions an increase “Incremental Commitment”). Each Incremental Commitment shall be in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of at least $15,000,000 on each occasion 5.0 million and the aggregate amount of all Incremental Commitments shall not to exceed $50,000,000 20.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which Borrower proposes that the Incremental Commitments be made available, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent, and the amount of the Incremental Commitments. The Administrative Agent shall notify Borrower in writing of the aggregate identity of each Lender or other financial institution reasonably acceptable to the Administrative Agent and the Borrower (each, an “Incremental Lender”) to whom the Incremental Commitments have been allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date; provided that (1) such Incremental Commitment will constitute permitted debt and the liens securing the same will constitute permitted liens, in each case, under the Senior Notes Indenture, the Senior Secured Notes Indenture, and the Senior Secured Notes Security Agreement, (2) no Default or Event of Default has occurred and is continuing or would result after giving effect to the making of such Incremental Commitments and Loans or the application of the proceeds therefrom, and the chief financial officer of the Borrower shall have delivered a certificate, in form and substance satisfactory to Administrative Agent, with respect to items (1) and (2) herein, and (3) such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan Commitments shall be no earlier than evidenced by one or more joinder agreements (the Term Loan Maturity Date;
(ii“Increase Joinder”) the Revolving Credit Maturity Date shall not be modified executed by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3Borrower, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Administrative Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ making such Incremental Commitment, in form and Eligible Financial Institutions' responses substance satisfactory to each request made hereunderof them. Agent and Borrowers shall determine the effective date (the "The Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.17, and each shall be recorded in the register, each of which shall be subject to the requirements set forth in Section 2.14(e). All terms and conditions of any Loans or other Obligations relating to Incremental Commitments shall be on the same terms and conditions as those applicable to Commitments, Loans and other Obligations under this Agreement. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Loans shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to Incremental Commitments made pursuant to this Agreement.
(b) On any Increased Amount Date on which Incremental Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Loans and participations in Letters of Credit outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and have the same terms as any existing Loan and (iii) each Incremental Lender shall become a Lender with respect to the Commitments and all matters relating thereto. Borrower shall make any payments required pursuant to Section 2.12 in connection with any adjustment of Loans pursuant to this Section 2.17(b). Assignments made to effect this Section 2.17(b) shall be made in accordance with Section 11.04.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders.
Appears in 1 contract
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than thirty (30) days’ (or such shorter period as may be acceptable to Agent) notice to Agent, as long as (a) Notwithstanding anything to the contrary contained requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 20,000,000 and is offered on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amountsame terms as existing Commitments, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to total increases under this Section 2.3 do not exceed $120,000,000 and no more than three (3) increases are made and (c) any other fees or expenses required to be paid by Borrowers in connection with such increase shall set forth be mutually agreed. Agent shall promptly notify Lenders of the requested amount increase and, subject to subsection within ten (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanthereafter, unless it so agrees. Each each Lender shall notify Agent within if and to what extent such time period whether or not it agrees Lender commits to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than increase its current Applicable Commitment Percentage of such Incremental LoanCommitment. Any Lender not responding within such time period shall be deemed to have declined an increase. If L▇▇▇▇▇▇ fail to increase commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. Agent may allocate, in its commitmentdiscretion, the increased Commitments among committing Lenders and, if necessary, Eligible Assignees. At Total Commitments shall be increased by the requested amount (or such lesser amount committed by L▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided (i) the conditions set forth in Section 6.2 are satisfied at such time; and (ii) to the extent Collateral includes any Real Estate, flood insurance diligence and documentation have been completed as required by all Flood Laws or otherwise in a manner satisfactory to all Lenders. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments. On the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.”
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Inari Medical, Inc.)
Increase in Commitments. Borrowers may, at any time prior to the expiration or termination of the Commitments, request an increase in Commitments from time to time upon not less than 45 days’ prior notice delivered to the Agent, as long as (a) Notwithstanding anything to the contrary contained each requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 5,000,000.00 and is offered on each occasion terms identical to the existing Commitments (including, without limitation, with respect to pricing, fees and not maturity), except that the Borrowers may pay a closing fee in connection with such increase, such fee to be specified by Borrowers, but in no event to exceed 50 basis points of the increased Commitments, (b) total increases under this Section after the date hereof do not exceed $50,000,000 50,000,000.00 in the aggregate for all such increases, and no more than four (any 4) increases are made during the term of this Agreement and (c) no Default or Event of Default has occurred and is continued or would be caused by such increase or any substantially concurrent borrowing thereunder. Agent shall promptly notify Lenders in writing of the Term Loan Amount, an "Incremental Term Loan" and any such requested increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause within ten (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days from the date of delivery of thereafter, each Lender shall notify Agent if and to what extent such notice Lender commits to the Lenders and the Eligible Financial Institutions)increase its Commitment. Any Lender not responding within such period shall be deemed to have declined an increase. No Lender shall be obligated to provide any Incremental Loan, increased Commitments unless it so agrees; provided, the Borrower shall first request such increase from each existing Lender in accordance with such Lender’s pro rata share of the existing Commitment (as of the date of such request) prior to approaching any other Person, and each such Lender may elect or decline, in its sole discretion, to provide such increase. Each Lender shall notify Agent within such time period whether or not it agrees If existing Lenders fail to make commit to the full requested increase as contemplated above, Eligible Assignees may issue additional Commitments for any unallocated portion of the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loanincrease and shall become Lenders hereunder in accordance with the terms hereof. Any Lender not responding within such time period Total Commitments shall be deemed to have declined to increase its commitment. At increased by the requested amount (or such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments in accordance with the terms above. On the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrower may at any time and from time to time, by written notice to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior deliver a copy to the earlier each of the Revolving Credit Maturity Date and Lenders) given not earlier than the Term Loan Maturity 60th day following the Effective Date, request that the total Commitments be increased by an amount not greater than $130,000,000; provided, that if the Borrower or any Restricted Subsidiary shall have incurred Indebtedness in reliance on up to three occasions an clause (h) of Section 6.01, no increase in the Total Revolving Credit Commitment or Commitments shall be effected under this Section if after giving effect thereto the Term Loan Amount by a minimum aggregate amount of $15,000,000 on each occasion and not to the Commitments would exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each 150,000,000. Such notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, requested increase in the total Commitments and (in consultation with Agent) shall specify the time period within date on which each Lender and each Eligible Financial Institution, such increase is requested to respond become effective (which shall in no event be not less than fifteen (15) Business Days from 45 days or more than 60 days after the date of delivery such notice), and shall offer each Lender the opportunity to increase its Commitment by its Participation Percentage of such the proposed increased amount. Each Lender shall, by notice to the Lenders Borrower and the Eligible Financial Institutions). No Administrative Agent given not more than 20 days after the date of the Borrower’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Lender shall be obligated so agreeing being called an “Increasing Lender”) or decline to provide increase its Commitment (and any Incremental Loan, unless it so agrees. Each Lender shall notify Agent that does not deliver such a notice within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period 20 days shall be deemed to have declined to increase its commitmentCommitment) (each Lender so declining or deemed to have declined being called a “Non-Increasing Lender”). At No Lender shall have any obligation hereunder to become an Increasing Lender and any election to do so shall be in the sole discretion of each Lender. In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more Lenders or other financial institutions (any such timeLender or other financial institution being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in accordance an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Lender hereunder. Increases and new Commitments created pursuant to this paragraph (a) shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph.
(b) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under paragraph (a) above unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the President, a Vice-President or a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received documents consistent with those delivered under clauses (b) and (c) of
Section 2.4, Borrowers 4.01 as to the corporate power and Agent may invite Eligible Financial Institutions authority of the Borrower to join borrow hereunder and as to the enforceability of this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses after giving effect to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to paragraph (a) above (the “Commitment Increase”), (i) the aggregate principal amount of the Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall become Term Loans under this Agreementbe deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Participation Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Participation Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender’s Participation Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender’s Participation Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and Incremental Revolving (B) the product of (1) such Non-Increasing Lender’s Participation Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall become Revolving Loans under this Agreement be deemed to hold its Participation Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to an amendment clause (an "Incremental Loan Amendment"i) above shall be subject to this Agreement and, as appropriate, compensation by the other Transaction Documents. Subject Borrower pursuant to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.32.15 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (A. H. Belo CORP)
Increase in Commitments. (a) Notwithstanding anything Upon notice to the contrary contained Administrative Agent, at any time after the Closing Date, each Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed (A) $250,000,000 (the “General Incremental Availability”), plus (B) $750,000,000 (the “Ratio Incremental Availability”) to the extent that in the case of this clause (B) only the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments, as applicable, shall not exceed 4.0:1.0 (it being agreed that (I) the Borrowers may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this Agreement sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the Borrowers may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit Loans, as applicable) originally designated to be incurred under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the Borrowers would be permitted to incur under this Section 2.14 the aggregate principal amount of such Indebtedness being so re-designated), (ii) any such addition shall be in an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of the conditions Additional Term Commitments and Additional Revolving Credit Commitments set forth in Section 7.1(cclause (i) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutionsthis proviso), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
iii) (iA) the final maturity date of any Incremental Additional Term Loan Loans shall be no earlier than the Maturity Date for the Term Loan Loans and (B) the final maturity date of any Additional Revolving Credit Loans shall be no earlier than the Maturity Date;
(ii) Date for the Revolving Credit Maturity Date shall not be modified by Loans; provided that the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization schedule with respect to any Additional Term Loans shall be determined by the BV Borrower and the Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans, (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Commitments and/or Additional Revolving Credit Commitments that utilize the Ratio Incremental Availability, the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or, in the case of any Additional Term LoanCommitments, a Eurodollar Rate floor greater than 1.00%, with such increased amount being equated to interest margin for purposes of determining any Incremental increase to the applicable interest margin under the Term Loan shall Facility) applicable to any such Additional Term Commitments and/or Additional Revolving Credit Commitments will be determined by the Borrowers and the Lenders under lenders providing such Incremental Additional Term Commitments and/or Additional Revolving Credit Commitments, but will not be more than 0.50% higher than the corresponding all-in yield (after giving effect to interest rate margins (including the Eurodollar Rate floor), original issue discount and upfront fees) for the corresponding existing Term Loan provided that if Facility or Revolving Credit Facility, respectively, unless the interest rate margin in margins with respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be to such existing Facility are increased so that the interest rate margin in respect of such loan is by an amount equal to the interest rate margin for difference between the Incremental Loan; and
(iv) except as otherwise provided all-in this Section 2.3, the terms and conditions applicable yield with respect to any Incremental Loan shall be generally consistent with the terms of the such Additional Term Loan, or Commitments and/or Additional Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent Credit Commitments and the Borrowercorresponding all-in yield on such existing Facility minus 0.50%.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide If any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether Additional Term Commitments or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, Additional Revolving Credit Commitments are added in accordance with this Section 2.42.14, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and Borrowers the applicable Borrower shall determine the effective date (the "Increase “Additional Commitments Effective Date"”) and the final allocation amount of such addition. The Administrative Agent shall promptly notify the applicable Borrower and the Lenders (which may include Persons reasonably acceptable to the Administrative Agent and the applicable Borrower that were not Lenders prior to the Additional Commitments Effective Date) of the final amount of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the BV Borrower shall deliver to the Administrative Agent a certificate of the BV Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the BV Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition. On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender”, as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the applicable Borrower in a principal amount equal to such Additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents.
(c) Incremental Any other terms of and documentation entered into in respect of any Additional Term Loans shall become made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, to the extent not consistent with the Term Loans under this Agreementor the Revolving Credit Commitments, and Incremental as the case may be, shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Loans shall become Revolving Loans under this Agreement Credit Commitments, as applicable, made or provided pursuant to an amendment this Section 2.14 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(an "Incremental d) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Amendment") to this Agreement and, as appropriateDocument, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of amended by the Agent and the BorrowerLoan Parties, if necessary, to effect provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the provisions of this Section 2.3case may be.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding N.V.)
Increase in Commitments. (a) Notwithstanding anything Upon notice to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial InstitutionsLenders), Borrowers maythe Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments (each, prior a “Commitment Increase”) pursuant to any Commitment Increase and Joinder Agreement; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the sum of (i) $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the earlier portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Maturity Date Commitments (to the extent not financed with the proceeds of long-term Indebtedness) and (iv) an amount not in excess of an amount such that, after giving effect to the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit relevant Commitment or the Term Loan Amount Increase (A) if such Commitment Increase is secured by a minimum amount Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.50:1.00; provided that for purposes of $15,000,000 on each occasion and not to exceed $50,000,000 in calculating such First Lien Leverage Ratio or Senior Secured Leverage Ratio under this clause (iv), (1) the aggregate (proceeds from any such increase in the Term Loan Amount, an "Incremental Term Loan" Commitment Increase shall not be netted from Indebtedness and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii2) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan Commitments shall be determined by assumed to be fully drawn. It is understood and agreed that, unless the Borrowers and Borrower otherwise notifies the Lenders under such Incremental Loan provided that Administrative Agent, if the interest rate margin in respect all or any portion of any Commitment Increase or Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall Equivalent Debt would be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
permitted under clause (iv) except as otherwise provided in of this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection clause (a) of this Section 2.3, proposed terms of on the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the applicable date of delivery of determination, such notice to Commitment Increase or Incremental Equivalent Debt (or the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period relevant portion thereof) shall be deemed to have declined been incurred in reliance on clause (iv) of this clause (a) prior to increase its commitmentthe utilization of any amount available under clause (i) of this clause(a). At Each such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans addition under this Agreement, and Incremental Revolving Loans Section 2.16(a). shall become Revolving Loans under this Agreement pursuant to be in an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent aggregate amount of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary $5,000,000 or appropriate, any whole multiple of $1,000,000 in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3excess thereof.
Appears in 1 contract
Sources: Credit and Guaranty Agreement
Increase in Commitments. (a) Notwithstanding anything Subject to the contrary contained in this Agreement and provided all prior written consent of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request consent may be contingent on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such effectuating certain amendments to this Agreement and the other Transaction Loan Documents as applicable to some or all of the Loans, which amendments shall be in form and substance reasonably acceptable to the Administrative Agent), the Borrowers shall have the right to request an increase the Delay Draw Commitments by obtaining additional Delay Draw Commitments, either from one or more of the existing Lenders or, solely to the extent that the existing Lenders do not agree to furnish the entire amount of any requested increase, another lending institution (which Commitments may be necessary provided on the same, or appropriateas and to the extent required by the Administrative Agent and applicable Lenders, different terms and conditions from the existing Delay Draw Commitments) provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000, (ii) the aggregate amount of all additional Delay Draw Commitments obtained under this Section 2.08 shall not exceed $50,000,000, (iii) the identity of any such new Lender shall be reasonably acceptable to the Administrative Agent, such approval not to be unreasonably withheld or delayed, (iv) any such new Lender assumes all of the rights and obligations of a “Lender” hereunder, (v) the procedures and requirements described in Section 2.08 have been satisfied, and (vi) the Borrowers shall have paid to the Administrative Agent and applicable Lenders any fees required by Administrative Agent and such Lender in connection therewith. Nothing contained in this Section 2.08 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Delay Draw Commitment hereunder at any time.
(b) Any amendment hereto for such an increase shall be in form and substance reasonably satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrowers and each Lender being added or increasing its Delay Draw Commitment. As a condition precedent to such an increase or addition, the Borrowers shall deliver to the Administrative Agent (i) a certificate of each Loan Party signed by an Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the reasonable opinion case of the Agent Borrowers, certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties contained in Article III and the Borrowerother Loan Documents are true and correct in all material respects (except that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to effect any materiality qualifier shall be required to be true and correct in all respects) and (2) no Default exists, and (ii) legal 56 11584747
(c) Within a reasonable time after the provisions effective date of any increase or addition, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect such increase or addition and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrower Representative, whereupon such revised Commitment Schedule shall replace the old Commitment Schedule and become part of this Section 2.3Agreement.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfiedOn or before November [ ], upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions)2006, Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
so long as (i) the final maturity date no Default or Event of any Incremental Term Loan Default shall have occurred and be no earlier than the Term Loan Maturity Date;
continuing, and (ii) the Revolving proceeds of any Credit Maturity Date shall not be modified by Extensions utilizing such increased Commitments are used to construct or acquire new articulated tug-barge vessels (including the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
ATB) or to fund a Vessel Acquisition, (iii) each Lender shall have been offered a pro rata share of such proposed increase, and (iv) on the interest rate margins andeffective date of such increase, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan no LIBO Rate Loans shall be determined by outstanding (or if any LIBO Rate Loans are outstanding, the Borrowers and effective date of such increase shall be the Lenders under such Incremental Loan provided that if last day of the interest rate margin Interest Period in respect of such LIBO Rate Loans), Borrowers may increase the Term Loan Commitment Amount or the Revolving Commitment Amount, or both (such increase herein the "Greenshoe Increase"), at the Arranger's and the Borrowers' mutual discretion, in an aggregate amount for all such increases of up to $90,000,000. Each Lender shall have the option, but no Lender shall have any Incremental Loan exceeds obligation, to increase its Commitment hereunder in connection with any such increase. In the event that it is necessary to increase the Applicable Margin for in respect of such Greenshoe Increase (herein the "Greenshoe Margin") such that the Applicable Margin on Term Loan or Loans would be less than such increased Applicable Margin on the Revolving Loans, as applicableGreenshoe Increase, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of the Term Loan shall automatically be deemed increased to the Greenshoe Margin. In the event that any fee (including any upfront fee, or signing fee or any discount to par value) payable to any Lender making a new Commitment or increasing its Commitment as part of the Greenshoe Increase (herein a "Greenshoe Increasing Lender") exceeds 25 basis points on such loan is Lender's share of such Greenshoe Increase, then the Borrowers shall pay to each of the Lenders holding a Term Loan Commitment which are not Greenshoe Increasing Lenders an amount equal to the interest rate margin for product of (x) such Lender's Term Loan Commitment Amount times (y) the Incremental Loan; and
number of basis points by which such fee payable to such Greenshoe Increasing Lenders exceeds 25 basis points (iv) except as otherwise provided in this Section 2.3the "Increased Fee"). Such Increased Fee shall be paid upon the effectiveness of such Greenshoe Increase. If the Borrowers desire to effect a Greenshoe Increase, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent Borrowers and the Borrower.
(bfinancial institution(s) Each notice from that the Borrowers pursuant propose to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each become a Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loanhereunder, and, if soapplicable, whether by the existing Lender(s) that the Borrowers propose to increase their existing Commitments shall (subject at all times to the consent of each such financial institution or each such existing Lender, as applicable) execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit N hereto (an amount equal to, greater than, or less than its current Applicable Commitment Percentage "Additional Lender Certificate"). Upon receipt of such Incremental Loan. Any Additional Lender not responding within Certificate (1) any such time period additional Lender shall be deemed to have declined to increase its commitment. At such time, be a party in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments all respect to this Agreement and the other Transaction Loan Documents as may be necessary or appropriateof the effective date set forth in such Additional Lender Certificate and (2) upon the effective date set forth in such Additional Lender Certificate, any such Lender party to the Additional Lender Certificate shall purchase a pro rata portion of the outstanding Loans (and participation interests in the reasonable opinion Letters of Credit) of each of the Agent current Lenders such that the Lenders (including any additional Lender, if applicable) shall hold their Percentage of the outstanding Loans (and the Borrower, to effect the provisions of this Section 2.3participation interests).
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers The Borrower may, on any Business Day prior to the earlier Termination Date and with the Administrative Agent’s prior written consent, increase the aggregate amount of the Revolving Credit Maturity Date Commitments by delivering a Commitment Amount Increase Request substantially in the form attached hereto as Exhibit F or in such other form acceptable to the Administrative Agent at least five (5) Business Days (or such lesser period agreed to by the Administrative Agent) prior to the desired effective date of such increase (the “Commitment Amount Increase”) identifying an additional Lender (or additional Commitments for existing Lender(s)) and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate its Commitment (any such increase in the Term Loan Amountor additional amount of its Commitment(s)); provided, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loanhowever, each an "Incremental Loan"), provided that:
that (i) any increase of the final maturity aggregate amount of the Commitments to an amount in excess of $500,000,000 will require the approval of all Lenders, (ii) any increase of the aggregate amount of the Commitments shall be in an amount not less than $10,000,000, (iii) no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of any Incremental Term Loan the Commitment Amount Increase, and (iv) all representations and warranties contained in Section 6 hereof shall be no earlier than true and correct in all material respects at the Term Loan Maturity Date;
time of such request and on the effective date of such Commitment Amount Increase. The effective date of the Commitment Amount Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Percentage of Revolving Loans. It shall be a condition to such effectiveness that (i) if any Eurodollar Loans are outstanding on the date of such effectiveness, such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the Lenders pursuant to Section 1.10 hereof and (ii) the Revolving Credit Maturity Date Borrower shall not be modified by have terminated any portion of the increase in Commitments pursuant to Section 1.11(a) hereof. The Borrower agrees to pay any reasonable expenses of the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect Administrative Agent relating to any Incremental Term LoanCommitment Amount Increase. Notwithstanding anything herein to the contrary, for no Lender shall have any Incremental Loan shall be determined by the Borrowers obligation to increase its Commitment and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, no Lender’s Commitment shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanwithout its consent thereto, and (in consultation with Agent) shall specify the time period within which each Lender may at its option, unconditionally and each Eligible Financial Institutionwithout cause, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined decline to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseCommitment.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time prior to the contrary contained Business Day immediately preceding the Revolving Maturity Date, the Borrower may effectuate one or more increases in the aggregate Commitments (each such increase being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any existing Lender, to increase its Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided, however, that (i) each such Commitment Increase shall be equal to at least $5,000,000, (ii) all Commitments and Advances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Commitments and Advances except as to upfront fees which may be as agreed to between the Borrower and such Increasing Lender or Additional Lender, as the case may be, (iii) the aggregate of all such Commitment Increases shall not exceed an amount equal to the sum of $100,000,000, and (iv) such Commitment Increase shall not effect an increase in the aggregate Commitments if the Revolving Maturity Date has occurred. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.15 to the Administrative Agent and the Lenders. This Section 2.15 shall not be construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower or to arrange for any other Person to advance or to commit to advance any credit to the Borrower. For the avoidance of doubt, the increase of the aggregate Commitments to $200,000,000 pursuant to the Second Amendment constitutes a Commitment Increase pursuant to this Section 2.15 and no further increases of the aggregate Commitments shall be permitted pursuant to this Section 2.15 after the Second Amendment Effective Date.
(b) The Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the receipt by the Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the Administrative Agent signed by the Borrower, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and provided to be bound by all the terms and provisions hereof binding upon each Lender and (B) such evidence of appropriate authorization on the part of the conditions Borrower and the Guarantors with respect to such Commitment Increase and such legal opinions as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Advances to be made by each such Lender to effect the prepayment requirement set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions2.4(c)(iii), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined receipt by the Borrowers Administrative Agent of a certificate of an authorized officer of the Borrower certifying (A) both before and after giving effect to such Commitment Increase, no Default has occurred and is continuing, (B) all representations and warranties made by the Lenders under Borrower in this Agreement are true and correct in all material respects, unless such Incremental Loan provided that if representation or warranty relates to an earlier date which remains true and correct in all material respects as of such earlier date, and (C) the interest rate margin pro forma compliance with the covenants in respect of any Incremental Loan exceeds Sections 6.16 and 6.17, after giving effect to such Commitment Increase, and (iv) receipt by the Applicable Margin for the Term Loan Increasing Lender or the Revolving LoansAdditional Lender, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, of all such fees as applicable, shall be increased so that the interest rate margin in respect of agreed to between such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms Increasing Lender and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent /or Additional Lender and the Borrower.
(bc) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount andOn such Increase Date, subject to subsection (a) of this Section 2.3, proposed terms each Lender’s share of the Incremental Loan, Letter of Credit Exposure and (participations in consultation with Agent) respect of Swing Line Advances on such date shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall automatically be deemed to have declined equal such Lender’s Pro Rata Share of such Letter of Credit Obligations and participations in respect of Swing Line Advances (such Pro Rata Share for such Lender to increase its commitment. At such time, be determined as of the Increase Date in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement its Commitment on such date as Lenders hereunder for the portion a percentage of the Incremental Loan not taken aggregate Commitments on such date) without further action by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseany party.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Commitment Increase Agreement and Second Amendment (Hi-Crush Partners LP)
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), The Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, may request on up to three occasions an increase in the Total Revolving Credit Commitment or Commitments from time to time upon notice to the Term Loan Amount by Agent, as long as (a) the requested increase is in a minimum amount of $15,000,000 25,000,000 and is offered on each occasion and the same terms as existing Commitments, except for a closing fee specified by the Borrowers, (b) increases under this Section do not to exceed $50,000,000 200,000,000 in the aggregate and no more than four (any 4) increases are made, (c) no reduction in Commitments pursuant to Section 3.2 has occurred prior to the requested increase, (d) the Agent shall have received certified copies of the resolutions of Westlake approving such increase in the Term Loan AmountCommitments, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(ie) the final maturity date of any Incremental Term Loan increased Commitments shall be no earlier than on the Term Loan Maturity Date;
same terms and conditions as the existing Commitments, (iif) the Revolving Credit Maturity Date Borrowers shall not be modified deliver any legal opinions or other documents reasonably requested by the Agent, and (g) the Borrowers shall pay, on demand, all fees and reasonable costs and expenses (including Attorney Costs) paid or incurred by the Agent and the Arranger in connection with the increase in the Revolving Credit Commitment with Commitments. The Agent shall promptly notify Lenders of the Incremental Revolving Loan Commitment;
(iii) the interest rate margins requested increase and, subject to clause within ten (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanthereafter, unless it so agrees. Each each Lender shall notify the Agent within if and to what extent such time period whether or not it agrees Lender commits to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than increase its current Applicable Commitment Percentage of such Incremental LoanCommitment; provided that no Lender shall have any obligation to increase its Commitment. Any Lender not responding within such time period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. The Agent may allocate, in its discretion, the increased Commitments among committing Lenders and, if necessary, Eligible Assignees. Provided the conditions set forth in Section 8.2 are satisfied, total Commitments shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by the Agent and the Borrowers, but no later than forty-five (45) days following the Borrowers’ increase its commitmentrequest. At The Agent, the Borrowers, and new and existing Lenders shall execute and deliver such timedocuments and agreements as the Agent deems appropriate to evidence the increase in and allocations of the Commitments. On the effective date of an increase, all outstanding Revolving Loans, Letter of Credit Obligations and other exposures shall be reallocated among Lenders, and settled by the Agent if necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrower may at any time and from time to time add additional financial institutions hereunder as Syndicated Lenders or, with the contrary contained consent of a Syndicated Lender, increase its Syndicated Tranche Commitment, and in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfiedeach case, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an thereby increase in the Total Revolving Credit Commitment or provided that at the Term Loan Amount by a minimum amount time of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided thataddition:
(i) the final maturity date no Default or Event of any Incremental Term Loan shall Default has occurred and is continuing or would reasonably be no earlier than the Term Loan Maturity Dateexpected to result therefrom;
(ii) all increases to the Revolving Credit Maturity Date Syndicated Tranche as a result of the application of this Section 2.1(c) or otherwise, shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitmentat any time exceed Cdn.$250,000,000;
(iii) the interest rate margins andAgent and each Fronting Lender has consented to such financial institution becoming a Syndicated Lender or, subject in the case of an existing Syndicated Lender, increasing its Syndicated Tranche Commitment, such consent not to clause be unreasonably withheld;
(iiv) abovethe Syndicated Tranche Commitment of a new financial institution being added as a Lender pursuant to this Section 2.1(c) shall be no less than Cdn.$10,000,000;
(v) if, amortization in connection with any such increase a commitment or similar fee is paid to any new Lender based on its new Syndicated Tranche Commitment (the “new money fee”), then the Borrower will also pay a corresponding fee equal to the same number of bps to the then existing Lenders based on their respective then existing Syndicated Tranche Commitments to the extent such a fee was not already paid on or after the Effective Date;
(vi) concurrently with the addition of a financial institution as an additional Syndicated Lender or the increase of a Lender’s Syndicated Tranche Commitment, such financial institution or Syndicated Lender, as the case may be, shall purchase from each other Syndicated Lender, such portion of the Outstandings under the Credit Facility owed to each Syndicated Lender as is necessary to ensure that the Outstandings under the Syndicated Tranche owed to all Syndicated Lenders and including therein such additional financial institution and the increased Syndicated Tranche Commitment of any Syndicated Lender, are in accordance with the Applicable Percentage of all such Syndicated Lenders (including any new financial institution and the increased Syndicated Tranche Commitment of any Syndicated Lender) and such financial institution shall execute such documentation as is required by the Agent, acting reasonably, to novate such financial institution as a Syndicated Lender hereunder; provided that with respect to any Incremental Term Loanportion of such Outstandings which are outstanding by way of Bankers’ Acceptance or LIBO Rate Loans, for any Incremental Loan the new financial institution or such Syndicated Lender shall be determined by provide an indemnity to the Borrowers and the other Syndicated Lenders under such Incremental Loan (provided that if no such indemnity may exceed two months in duration unless agreed to by all of the interest rate margin affected Syndicated Lenders) in respect order to ensure such Bankers’ Acceptances and LIBO Rate Loans are outstanding in accordance with the new Applicable Percentages of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loanall Syndicated Lenders; and
(ivvii) except as otherwise the Borrower has provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent a certified copy of a directors’ resolution of the Borrower and each other Obligor authorizing any such increase in the Syndicated Tranche Commitments (which may be the original directors’ resolutions authorizing the Credit Facility hereunder) together with a legal opinion from Borrower.
(b) Each notice from Borrowers ’s Counsel with respect thereto in substantially the same form, mutatis mutandis, as the opinion delivered pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions3.1(e). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Revolving Facility Termination Date, request on one or more occasions, up to three, in the aggregate, Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $50,000,000 from one or more Incremental Revolving Credit Lenders, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its reasonable discretion. Such notice shall set forth (i) the amount of the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), and (ii) the date on which such Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Notwithstanding anything contained herein to the contrary contained contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrower may seek Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders in connection therewith. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment evidenced thereby as provided all for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Credit Commitment shall become effective under this Section 2.14 unless (i) on the date of such effectiveness, the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which 4.02 shall promptly notify the Lenders be satisfied and the Eligible Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Institutions), Borrowers may, prior to the earlier Officer of the Revolving Credit Maturity Date and the Term Loan Maturity DateBorrower, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date Administrative Agent shall not be modified by have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
Closing Date, (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan Administrative Agent shall be determined have received an updated “Eagle 9” insurance policy which increases the coverage thereunder by the Borrowers and the Lenders under amount of such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving LoansCredit Commitment, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided the Borrower would be in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent pro forma compliance with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall covenants set forth the requested amount and, subject to subsection (a) of this in Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions)7.07. No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.43
Appears in 1 contract
Sources: Credit Agreement (Preferred Apartment Communities Inc)
Increase in Commitments. (a) Notwithstanding anything The Borrower may, by written notice to the contrary contained in this Agreement Administrative Agent at any time after the Effective Date and provided all prior to the Latest Maturity Date, on one or more occasions (but not more than three), request to incur one or more Incremental Term Loan Commitments and/or increase the aggregate amount of the conditions Revolving Facility by obtaining one or more Incremental Revolving Credit Commitments, in an aggregate principal amount not to exceed $100,000,000, from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and solely with respect to any Incremental Revolving Credit Lender, each LC Issuer and the Swing Line Lender, in each case in their respective reasonable discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Such notice shall set forth in Section 7.1(c(i) have been satisfied, upon notice to Agent the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall promptly notify the Lenders be in minimum increments of $1,000,000 and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 10,000,000), (ii) the date on each occasion which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than five Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and not (iii) whether such Incremental Term Loan Commitments are to exceed $50,000,000 in the aggregate (any such increase in be Term Commitments or commitments to make term loans with terms different from the Term Loan AmountLoans (“Other Term Loans”); provided that (a) no commitment of any Lender may be increased without consent of such Lender, and (b) except as otherwise agreed by the Lenders (in their sole discretion) providing the Incremental Facility in connection with an "acquisition or other Investment permitted under this Agreement, no Default or Event of Default exists immediately before or after giving effect thereto. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans; provided that the Borrower may increase the pricing of the Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing “LIBOR Floor” (if applicable), and paying additional upfront fees.
(b) The Borrower and each Incremental Term Loan" Lender shall execute and any deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such increase in other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment an "of such Incremental Revolving Credit Lender. Each Incremental Term Loan Commitment" Assumption Agreement and such loan an "Incremental Revolving Loan" and together with Credit Assumption Agreement shall specify the terms of the Incremental Term LoanLoans or Incremental Revolving Loans, each an "Incremental Loan")as applicable, provided that:
to be made thereunder; provided, that (i) the final maturity date of any Incremental Other Term Loan Loans shall be no earlier than the Term Loan Latest Maturity Date;
, (ii) the Revolving Credit Maturity Date average life to maturity of any Other Term Loans shall not be modified by no shorter than the increase in average life to maturity of the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
Term Loans, (iii) until the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loandate that is 18 months after the Effective Date, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that Other Term Loans, if the interest rate Initial Yield on such Other Term Loans exceeds by more than 50 basis points the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or Loans (the Revolving Loans, amount of such excess above 50 basis points being referred to herein as applicablethe “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from the Borrower or any Subsidiary, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four, (iv) the Incremental Term Loans shall be denominated in Dollars, and (v) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the other Credit Facilities or may be unsecured. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of its Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. For the avoidance of doubt, any Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable amendment documenting such Incremental Term Loan. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and Incremental Revolving LoansCredit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, shall evidenced thereby as provided for in Section 10.12. Any such deemed amendment may be increased so that memorialized in writing by the interest rate margin in respect of such loan is equal Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the interest rate margin for other parties hereto. For the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3avoidance of doubt, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms none of the Term Loan, Borrower or Revolving Loan, as applicable, its Subsidiaries or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to their respective Affiliates may provide any Incremental Revolving Credit Commitment or Incremental Term Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in pro forma compliance with the covenants set forth in Section 7.07.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall become be ratably increased by the aggregate principal amount of such Incremental Term Loans under this Agreement, and Loans.
(e) On the effective date of any Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriateCredit Commitments, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement Administrative Agent may take any and the other Transaction Documents all action as may be reasonably necessary to ensure that, upon the effectiveness of such Incremental Revolving Credit Commitments, (i) Revolving Loans made under such Incremental Revolving Credit Commitments are included in each Borrowing of outstanding Revolving Loans on a pro rata basis and (ii) the Lender providing such Incremental Revolving Credit Commitments shares ratably in the Aggregate Revolving Facility Exposure. Each of the Revolving Lenders shall participate in any new Revolving Loans made on or appropriateafter such date on a pro rata basis based upon such Lender’s Revolving Facility Percentage after giving effect to the increase in Revolving Commitments contemplated by Section 2.17. On the effective date of any Incremental Revolving Credit Commitments, each Lender providing any such additional Revolving Commitments (i) will be deemed to have purchased a participation in each then outstanding Letter of Credit on a pro rata basis based upon such Lender’s Revolving Facility Percentage of such Letters of Credit and the participation of each other Revolving Lender in such Revolving Facility Letters of Credit shall be adjusted accordingly and (ii) will acquire, (and will pay to the Administrative Agent, for the account of each Lender, in the reasonable opinion immediately available funds, an amount equal to) its pro rata share based upon such Lender’s Revolving Facility Percentage of the Agent and the Borrower, to effect the provisions of this Section 2.3outstanding Revolving Facility LC Participation.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
Increase in Commitments. (a) Notwithstanding anything At any time after the Effective Date until the third anniversary of the Effective Date, the Borrower may, by written notice to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify deliver a copy to each of the Lenders), request at any time or from time to time that the total Revolving Advance Commitments and/or Term A Commitments and/or Term B Commitments be increased; provided that (i) the aggregate amount of all such increases pursuant to this Section shall not exceed $1,000,000,000, (ii) the Borrower shall offer each Lender the opportunity to increase its applicable Commitment by its Percentage of the proposed increased amount, and (iii) each Lender, in its sole discretion, may either (A) agree to increase its applicable Commitment by all or a portion of the offered amount or (B) decline to increase its applicable Commitment. Any such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective. In the event that the Lenders and shall have agreed to increase their applicable Commitments by an aggregate amount less than the Eligible Financial Institutionsincrease in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), Borrowers maywhich may include any Lender, prior to extend Commitments or increase its existing Commitment in an aggregate amount equal to the earlier unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Revolving Credit Maturity Date and Agent and, in the Term Loan Maturity Date, request on up to three occasions case of an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term LoanAdvance Commitments, each an "Incremental Loan"), provided that:
LC Bank that has any outstanding Letters of Credit at the time (i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date which approvals shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan unreasonably withheld or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutionsdelayed). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within Any such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period additional Term Advances shall be deemed an “Incremental Term Advance”, any such commitment to have declined to increase its commitment. At such timemake Incremental Term Advances shall be deemed an “Incremental Term Advance Commitment”, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) aggregate amount thereof agreed to be provided by the applicable Lenders or Augmenting Lenders shall be an “Incremental Term Loans Advance Commitment Amount”. Any such additional Revolving Advance Commitments shall become Term Loans under this Agreement, and be deemed an “Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement Commitment” and the other Transaction Documents as may aggregate amount thereof agreed to be necessary provided by the applicable Lenders or appropriate, in Augmenting Lenders shall be the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3“Incremental Revolving Advance Commitment Amount.”
Appears in 1 contract
Sources: Credit Agreement (Supervalu Inc)
Increase in Commitments. (a) The Borrower shall have the right, at any time prior to the date that is thirty (30) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Revolver Commitments (each such requested increase, a “Commitment Increase”), by having one or more existing Lenders increase their respective Revolver Commitments then in effect (each, an “Increasing Lender”), by adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000 (or such lesser amount as the Administrative Agent may reasonably agree), (ii) immediately after giving effect to any Commitment Increase, the aggregate Revolver Commitments shall not exceed $200,000,000300,000,000, and (iii) no Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase. No consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase. The Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender. Section 5.07 will be adjusted by mutual consent of the Borrower and the Majority Lenders. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender. Other than fees payable to the Administrative Agent, any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and the Administrative Agent, shall be for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval, not to be unreasonably withheld, conditioned or delayed, of the Administrative Agent and the Issuing Bank). The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrowers may reasonably require, all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower to effect a Commitment Increase pursuant to this Section 2.14.
(c) If the aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Section 2.14 to the contrary contained in this Agreement contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and provided all of no Commitment Increase shall be effective) unless the conditions set forth in Section 7.1(c2.14(a)(i) have been satisfied, upon notice to Agent Conformed Credit Agreement - Page 71 through (which shall promptly notify iii) as well as the Lenders and following conditions precedent are satisfied on the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity applicable Commitment Increase Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) The Administrative Agent shall have received the final maturity date following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Administrative Agent and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 2.14(e), all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Commitment Increase;
(D) a certificate of the chief financial officer or another Responsible Officer of the Borrower, certifying that (x) as of the Commitment Increase Date, all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any Incremental Term Loan shall be such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct in all material respects as of such date), and (y) no earlier than Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the Term Loan Maturity Date;application of the proceeds thereof); and
(E) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) (ii) In the Revolving Credit Maturity Date case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;have been satisfied.
(iiia) On the interest rate margins andCommitment Increase Date, subject to clause (i) above, amortization with respect the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to any Incremental Term Loan, for any Incremental Loan giving effect to the Commitment Increase shall be determined by deemed to be repaid, (ii) immediately after the Borrowers and effectiveness of the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3Commitment Increase, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period Borrower shall be deemed to have declined made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to increase its commitment. At such time, the aggregate principal amount of the Initial Advances and of the types and for the Interest Period specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.42.01, Borrowers and (iii) each Lender shall pay to the Administrative Agent may invite Eligible Financial Institutions in immediately available funds an amount equal to join this Agreement as Lenders hereunder for the portion difference, if positive, between (y) such ▇▇▇▇▇▇’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers Subsequent Borrowings and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Conformed Credit Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.- Page 72
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time after the Restatement Effective Date, the Parent Borrower may, by written notice to the contrary contained Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request at any time or from time to time that the total Commitments be increased; provided that (i) the aggregate amount of each such increase pursuant to this Section 2.22 shall not be less than $50,000,000 and the aggregate amount of all such increases pursuant to this Section 2.22 shall not exceed $400,000,000, (ii) each such request of the Parent Borrower shall be deemed to be an offer to each Lender to increase its Commitment by its Applicable Percentage of the proposed increased amount and (iii) each Lender, in its sole discretion, may either (A) agree to increase its Commitment by all or a portion of the offered amount or (B) decline to increase its Commitment. Any such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective. In the event that the Lenders shall have agreed to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Parent Borrower, the Parent Borrower may arrange for one or more banks or other financial institutions (any bank or other financial institution increasing its Commitment or providing a new Commitment pursuant to this Section 2.22 being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase its existing Commitment in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender (or an Affiliate of a Lender) hereunder, shall be subject to the approval of the Administrative Agent (not to be unreasonably withheld); provided further that any Commitment extended or increased pursuant to this Section 2.22 shall be in a minimum amount of $10,000,000 (or, if less, the balance of the unsubscribed amount of the requested increase in total Commitments). Increases of Commitments and new Commitments created pursuant to this paragraph (a) shall become effective upon the execution and delivery by the Parent Borrower, the Administrative Agent and any Lenders (including any Augmenting Lenders) agreeing to increase their existing Commitments or extend new Commitments, as the case may be, of an amendment to this Agreement and provided all providing for such increased or additional Commitments. Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under this paragraph (a) unless, on the date of such increase, the conditions set forth in Section 7.1(c4.02(a) have been satisfiedand 4.02(b) shall be satisfied (as though a Borrowing were being made on such date, upon notice with all references in such Section to Agent (which shall promptly notify the Lenders a Borrowing being deemed to be references to such increase and the Eligible Financial Institutions), Borrowers may, prior without giving effect to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase parenthetical in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"Section 4.02(a), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of Administrative Agent shall have received a certificate to that effect dated such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, date and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion executed by a Financial Officer of the Agent and the Parent Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (J C Penney Co Inc)
Increase in Commitments. (a) Notwithstanding anything After the Closing Date, Administrative Agent may, from time to time upon five (5) Business Days prior notice by Borrower of a request to increase the contrary contained in this Agreement and provided all of Aggregate Commitments, increase the conditions set forth in Section 7.1(cAggregate Commitments by (x) have been satisfied, upon notice to Agent admitting additional Lenders hereunder (which shall promptly notify the Lenders and the Eligible Financial Institutionseach a "Subsequent Lender"), Borrowers may, prior to or (y) increasing the earlier Commitment of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate any Lender (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental LoanIncreasing Lender"), provided thatsubject to the following conditions:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Dateeach Subsequent Lender is an Eligible Assignee;
(ii) Borrower executes (A) a new Note payable to the Revolving Credit Maturity Date shall not be modified order of a Subsequent Lender, if requested by such Subsequent Lender, or (B) a replacement Note payable to the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitmentorder of an Increasing Lender, if requested by such Increasing Lender;
(iii) each Subsequent Lender executes a signature page to this Agreement;
(iv) after giving effect to the interest rate margins andadmission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, subject the Aggregate Commitments do not exceed $750,000,000 (less the amount of any previous reduction pursuant to clause Section 2.06);
(iv) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan each increase in the Aggregate Commitments shall be determined by in the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect minimum amount of $5,000,000 or a greater integral multiple of $1,000,000;
(vi) no admission of any Incremental Loan exceeds Subsequent Lender shall increase the Applicable Margin for Commitment of any existing Lender without the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, consent of such existing Lender;
(vii) no Lender shall be increased so that an Increasing Lender without the interest rate margin in respect consent of such loan is equal to the interest rate margin for the Incremental LoanLender; and
(ivviii) except as otherwise provided in this Section 2.3, the terms and conditions applicable no Default or Event of Default exists nor would occur after giving effect to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowersuch increase.
(b) Each notice from Borrowers After the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, Administrative Agent shall promptly provide to each Lender a new Schedule 2.01 to this Agreement. In the event that there are any Loans outstanding after giving effect to an increase in the Aggregate Commitments pursuant to this Section 2.3 shall set forth 2.15, upon notice from Administrative Agent to each Lender, the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice Loans owing to the Lenders and the Eligible Financial Institutions). No each Lender shall be obligated appropriately adjusted to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make reflect the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current new Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion Percentages of the Incremental Loan not taken by existing Lenders. Agent Lenders (in which case Borrower shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increasepay any amounts required under Section 3.05).
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)
Increase in Commitments. (a) The Borrowers may, by written notice to the Administrative Agent and the Arrangers at any time after the Closing Date and prior to the Revolving Commitment Termination Date, request on one or more (but no more than three) occasions, Incremental Revolving Credit Commitments in an aggregate principal amount not to exceed $50,000,000 from one or more Incremental Revolving Credit Lenders which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided, that each Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, solely with respect to any Lender holding Incremental Dutch Revolving Commitments, the Foreign Collateral Agent; provided further that after giving effect to such Incremental Revolving Credit Commitments, the Total Dutch Revolving Credit Commitment shall not exceed 15% of the Total Revolving Credit Commitment. Such notice shall set forth (i) the amount of the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, (ii) the date on which such Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Revolving Credit Commitments are to be Incremental Dutch Revolving Credit Commitments or Incremental U.S. Revolving Credit Commitments. Notwithstanding anything contained herein to the contrary contained contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrowers may seek Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders in connection therewith. The Borrowers and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Revolving Credit Assumption Agreement shall include the information required under Section 2.17(a)(i), (ii) and (iii) above. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, the Total Revolving Commitment shall be increased by the amount of the new Incremental Revolving Commitments and this Agreement otherwise shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment, as applicable, evidenced thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. The maturity date of each Incremental Revolving Credit Commitment shall be the Revolving Facility Termination Date. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and shall be on the same or, to the extent deemed satisfactory to the Administrative Agent, substantially similar, terms and conditions set forth herein.
(c) Notwithstanding the foregoing, no Incremental Revolving Credit Commitment shall become effective under this Section unless (i) on the date of such effectiveness, the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which 4.02 shall promptly notify the Lenders be satisfied and the Eligible Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Institutions), Borrowers may, prior to the earlier Officer of the Revolving Credit Maturity Date and the Term Loan Maturity DateCompany, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date Administrative Agent shall not be modified by have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
Closing Date, and (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall Credit Parties would be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent pro forma compliance with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall covenants set forth the requested amount and, subject to subsection (a) of this in Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and7.07, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increasethen applicable.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (Nn Inc)
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, At any time prior to the earlier of Business Day immediately preceding the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment Borrowers may effectuate one or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 more increases in the aggregate US Commitments and/or Canadian Commitments or add one or more new term loan facilities hereunder (each such increase or new term loan facility being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its US Commitment and/or its US Commitment or provide a new term loan commitment as such Lender shall so select (an “Increasing Lender”) and, in the Term Loan Amount, case of any other Eligible Assignee that is not an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment existing Lender (an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"“Additional Lender”), provided to become a party to this Agreement as a Lender; provided, however, that:
(i) each such Commitment Increase shall be equal to at least $5,000,000;
(ii) the final aggregate amount of all such Commitment Increases shall not exceed $50,000,000;
(iii) the aggregate amount of all such Commitment Increases in the form of one or more term loan facilities shall not exceed $25,000,000;
(iv) no Default shall exist immediately prior to and after giving effect to any such Commitment Increase;
(v) with respect to any Commitment Increase in the form of one or more term loan facilities, after giving pro forma effect to any such new additional term loans under a new term loan facility (and any Advances hereunder made on the effective date of such term loan facilities), the Leverage Ratio shall be no greater than 2.00 to 1.00;
(vi) no Lender shall be required or otherwise obligated to provide any Commitment Increase or any portion thereof;
(vii) the scheduled maturity date of any Incremental Term Loan new term loan facility shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, and no other scheduled amortization with respect to any Incremental Term Loan, for any Incremental Loan prepayments shall be determined by the Borrowers and the Lenders under such Incremental Loan provided required thereunder other than those that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal apply to the interest rate margin for the Incremental Loanexisting Facilities; and
(ivviii) except each such Commitment Increase shall have the same terms as otherwise provided the existing Facilities other than (A) original issue discounts, if any, upfront fees, and customary arrangement, structuring, or underwriting fees, if any, payable to one or more arrangers (or their affiliates) of any such Commitment Increase and (B) operational and structural terms reasonably acceptable to the Borrowers, such Increasing Lenders and the applicable Administrative Agent as may be necessary to implement such Commitment Increases in the form of a new term loan facility. The US Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory 2.17 to the US Administrative Agent and the Lenders. This Section 2.17 shall not be construed to create any obligation on the US Administrative Agent or any of the Lenders to advance or to commit to advance any credit to any Borrower or to arrange for any other Person to advance or to commit to advance any credit to any Borrower.
(b) Each notice from Borrowers pursuant The Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the receipt by the US Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the US Administrative Agent signed by the Borrowers, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Section 2.3 shall set forth Agreement and to be bound by all the requested amount andterms and provisions hereof binding upon each Lender, subject if any of the terms of such Commitment Increase differs from the Canadian Facility or the US Facility, as applicable, (B) an amendment to subsection (a) this Agreement signed by the Borrowers, the Administrative Agents and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Section 2.3, proposed Article 2 to account for the terms of the Incremental Loansuch Commitment Increase, and (C) such evidence of appropriate authorization on the part of the Borrowers with respect to such Commitment Increase and such customary legal opinions as the US Administrative Agent may reasonably request, (ii) in consultation with Agent) shall specify the time period within which case of any Commitment Increase in respect of the US Commitments, the funding by each Increasing Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Additional Lender of the Lenders’ US Advances to be made by each such Lender to effect the reallocations required in clause (c) below, (iii) in the case of any Commitment Increase in respect of the Canadian Commitments, the funding by each Increasing Lender and Eligible Financial Institutions' responses Additional Lender of the Canadian Advances to each request be made hereunder. on the Increase Date, if any, in the amount of such Lender’s increased Canadian Commitment, (iv) receipt by the US Administrative Agent of a certificate of an authorized officer of the US Borrower certifying that (A) both before and after giving effect to such Commitment Increase, no Default has occurred and is continuing, (B) all representations and warranties made by the Borrowers in this Agreement are true and correct in all material respects (except that such materiality qualifier shall determine not be applicable to any representations and warranties that already are qualified or modified by materiality in the effective text thereof), unless such representation or warranty relates to an earlier date which remains true and correct in all material respects as of such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the "Increase Effective Date"text thereof), and (C) the Parent is in pro forma compliance with the covenants in Section 6.16, after giving pro forma effect to the making of any Advances in connection with the relevant increase in the US Commitment or Canadian Commitment, or any such new additional term loans under a new term loan facility, and (v) receipt by the Increasing Lender or Additional Lender, as applicable, of all such fees as agreed to between such Increasing Lender and /or Additional Lender and the final allocation of such increaseapplicable Borrower.
(c) Incremental Term Loans On any Increased Date on which there is a Commitment Increase in the Canadian Commitments pursuant to Section 2.17, (i) each of the Canadian Facility Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and each of such Increasing Lender shall purchase from each of the Canadian Facility Lenders, at the principal amount thereof, such interests in the Canadian Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Canadian Advances will be held by existing Canadian Facility Lenders and the Increasing Lenders ratably in accordance with their Canadian Commitments after giving effect to the addition of such Commitment Increase in the Canadian Commitments, (ii) each Commitment Increase in the Canadian Commitments shall be deemed for all purposes a Canadian Commitment and each Canadian Advance made thereunder shall be deemed, for all purposes, a Canadian Advance and (iii) each Increasing Lender shall become Term Loans under this Agreement, a Canadian Facility Lender with respect to the Commitment Increase and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documentsall matters relating thereto. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the The Canadian Administrative Agent and the Borrower, to effect Canadian Facility Lenders hereby agree that the provisions minimum borrowing and prepayment requirements in Section 2.4 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the Canadian Advances shall take into account the actual Canadian Commitment of each Canadian Facility Lender and the principal amount outstanding of each Canadian Advance made by such Lender during the relevant period of time.
(d) On any Increase Date on which there is a Commitment Increase in the US Commitments pursuant to Section 2.32.17, (i) each of the US Facility Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and each of such Increasing Lender shall purchase from each of the US Facility Lenders, at the principal amount thereof, such interests in the US Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such US Advances will be held by existing US Facility Lenders and the Increasing Lenders ratably in accordance with their US Commitments after giving effect to the addition of such Commitment Increase in the US Commitments, (ii) each Commitment Increase in the US Commitments shall be deemed for all purposes a US Commitment and each US Advance made thereunder shall be deemed, for all purposes, a US Advance and (iii) each Increasing Lender shall become a US Facility Lender with respect to the Commitment Increase and all matters relating thereto. The US Administrative Agent and the US Facility Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.4 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the US Advances shall take into account the actual US Commitment of each US Facility Lender and the principal amount outstanding of each US Advance made by such Lender during the relevant period of time.
(e) On such Increase Date if such Commitment Increase involves an increase in the aggregate US Commitments, each US Facility Lender’s share of the Letter of Credit Exposure and participations in respect of Swing Line Advances on such date shall automatically be deemed to equal such Lender’s US Pro Rata Share of such Letter of Credit Obligations and participations in respect of Swing Line Advances (such US Pro Rata Share for such Lender to be determined as of the Increase Date in accordance with its US Commitment on such date as a percentage of the aggregate US Commitments on such date) without further action by any party.
Appears in 1 contract
Increase in Commitments. Prior to the Maturity Date and upon at least 45 days’ prior written notice to the Administrative Agent (which notice shall be promptly transmitted by the Administrative Agent to each Lender), the Borrower shall have the revocable right, from time to time during the term of this Agreement and subject to the terms and conditions set forth below, to increase the aggregate amount of the Aggregate Commitments; provided that (a) Notwithstanding anything to no Default or Event of Default shall exist at the contrary contained in this Agreement and provided all time of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify request or the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an proposed increase in the Total Revolving Credit Commitment or the Term Loan Amount by Aggregate Commitments, (b) any such increase must be in a minimum amount of $15,000,000 on each occasion 25,000,000 and in integral multiples of $5,000,000 above such amount, (c) the sum of any increases to the Commitment during the term of this Agreement shall not exceed FIVE HUNDRED MILLION DOLLARS ($500,000,000), (d) no individual Lender’s Commitment may be increased without such Lender’s written consent, (e) the Borrower shall execute and deliver such Note(s) as are necessary to exceed $50,000,000 reflect the increase in the aggregate respective Commitments, (f) Schedule 1.1 shall be amended to reflect the revised Commitments and revised Applicable Percentages of the Lenders and (g) if any Loans are outstanding at the time of an increase in the Aggregate Commitments, the Borrower will prepay (provided that any such prepayment shall not be subject to any minimum amount of prepayment or any requirements regarding pro rata repayments but shall be subject to Section 3.5) one or more existing Loans in an amount necessary such that after giving effect to the increase in the Aggregate Commitments each Lender will hold its pro rata share (based on its share of the revised Aggregate Commitments) of outstanding Loans. Any such increase in the Term Loan AmountAggregate Commitments shall apply, an "Incremental Term Loan" and any such increase in at the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date option of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect (x) the Commitment of one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto and if more than one Lender wishes to participate then such increase shall be allocated pro rata among such Lenders (based on the amount that each such Lender was willing to increase its Commitment) and/or (y) a new Commitment for one or more institutions that is not an existing Lender so long as such institution (A) conforms to the definition of Eligible Assignee, (B) is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (C) receives a Commitment of at least $5,000,000 and (D) becomes a Lender under this Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Agreement in a manner acceptable to the Borrower and the Administrative Agent. This Section shall supersede any provisions of this in Section 2.32.13 or 10.6 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time prior to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfiedapplicable Maturity Date, upon Time Warner may from time to time, by written notice to the Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior deliver a copy to the earlier of the Revolving Credit Maturity Date Lenders) executed by Time Warner and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment one or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate more financial institutions that qualify as Eligible Assignees (any such financial institution, which may include any Lender, referred to in this Section being called an “Increasing Lender”) cause the Tranche One Commitments and/or the Tranche Two Commitments of the Increasing Lenders to be increased (or cause the Increasing Lenders to make new Tranche One Commitments and/or Tranche Two Commitments, as applicable) in an amount for each Increasing Lender (which shall not be less than $5,000,000) set forth in such notice; provided that (i) no Lender shall have any obligation to increase its Commitment of either Class pursuant to this Section, (ii) all new Tranche One Commitments and increases in existing Tranche One Commitments becoming effective under this Section during the term of this Agreement shall not exceed $500,000,000 in the Term Loan Amountaggregate, an "Incremental Term Loan" (iii) all new Tranche Two Commitments and any such increase increases in existing Tranche Two Commitments becoming effective under this Section during the term of this Agreement shall not exceed $500,000,000 in the Revolving Credit aggregate, (iv) each Increasing Lender, if not already a Lender hereunder, shall be reasonably satisfactory to (A) the Administrative Agent and (B) each Swingline Lender, Issuing Bank and Yen Fronting Lender whose approval would be required under Section 9.04(b) if such Increasing Lender were being assigned a Commitment an "Incremental Revolving Loan Commitment" of the same Class (which approvals, in the case of both (A) and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"(B), shall not be unreasonably withheld), (v) each Increasing Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and Time Warner (an “Accession Agreement”) and (vi) no Default or Event of Default has occurred and is continuing. New Commitments and increases in Commitments of any Class pursuant to this Section (a “Commitment Increase”) shall become effective on the date (the “Increase Effective Date”) specified in the applicable Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Increasing Lender is a party, (i) such Increasing Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Lender of the applicable Class hereunder and subject to all obligations of a Lender of the applicable Class hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Commitment of the applicable Class of such Increasing Lender as provided that:
in such Accession Agreement. On the Increase Effective Date, (i) the final maturity date aggregate principal amount of any Incremental Term Loan the Borrowings of the applicable Class of Revolving Loans outstanding (the “Initial Borrowings”) immediately prior to the Commitment Increase on the Increase Effective Date shall be no earlier than the Term Loan Maturity Date;
deemed to be paid, (ii) each Increasing Lender that shall have had a Commitment of the applicable Class of Revolving Credit Maturity Date Loans prior to the Commitment Increase shall not be modified by pay to the increase Administrative Agent in same day funds (in the Revolving Credit applicable Currencies), an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage of the applicable Class (calculated after giving effect to the Commitment with Increase) multiplied by (2) the Incremental Revolving Loan Commitment;
amount of each Subsequent Borrowing (as hereinafter defined) of the applicable Class and (B) the product of (1) such Lender’s Applicable Percentage of the applicable Class (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of each Initial Borrowing of the applicable Class, (iii) each Increasing Lender that shall not have had a Commitment of the applicable Class prior to the Commitment Increase shall pay to the Administrative Agent in same day funds (in the applicable Currencies) an amount equal to the product of (1) such Increasing Lender’s Applicable Percentage of the applicable Class (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing of the applicable Class, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender of the applicable Class (in the applicable Currencies) the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage of the applicable Class (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of each Initial Borrowing of the applicable Class, and (B) the product of (1) such Lender’s Applicable Percentage of the applicable Class (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing of the applicable Class, (v) after the effectiveness of the Commitment Increase, the Borrowers shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in amounts (in the Currencies of the Initial Borrowings) equal to the amounts of the Initial Borrowings and of the Types and Class and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Lender shall hold its Applicable Percentage of the applicable Class of each Subsequent Borrowing of the applicable Class (calculated after giving effect to the Commitment Increase) and (vii) the Borrowers shall pay to the Administrative Agent for the account of each Lender of the applicable Class as set forth in Section 2.17 any and all accrued but unpaid interest rate margins and, subject on its Loans comprising the Initial Borrowings of the applicable Class. The deemed payments made pursuant to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan above shall be determined subject to compensation by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.32.15 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Time Warner Inc.)
Increase in Commitments. (a) Notwithstanding anything Borrower Agent may request an increase in the Commitments from time to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, time upon notice to Agent (which shall promptly notify a “Revolver Commitment Increase”) by adding to this Agreement one or more Eligible Assignees that are not already Lenders hereunder to provide additional Revolver Commitments and become Lenders hereunder that are reasonably satisfactory to Agent (not to be unreasonably withheld, delayed or conditioned) or by allowing one or more existing Lenders to increase their respective Commitments, as long as (a) the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase requested Revolver Commitment Increase is in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 10,000,000 and is offered on each occasion the same terms as the existing U.S. Revolver Commitments or Canadian Revolver Commitments, as applicable, except for any upfront fees agreed to by Borrower Agent and the Persons providing the Revolver Commitment Increase, (b) the Revolver Commitment Increases under this Section do not to exceed $50,000,000 in the aggregate aggregate, (any c) no Event of Default (or, if such increase Revolver Commitment Increase is being requested in connection with a Permitted Acquisition, no Event of Default under Section 11.1(a) or (h)) shall have occurred and be continuing as of the Term Loan Amountdate of the request of the Revolver Commitment Increase and both immediately before and after giving effect thereto, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(id) the final maturity date of any Incremental Term Loan shall Revolver Commitment Increase will be no earlier than allocated between the Term Loan Maturity Date;
(ii) U.S. Revolver Commitments and the Revolving Credit Maturity Date shall not be modified Canadian Revolver Commitments as designated by Borrower Agent and the increase in Persons providing the Revolving Credit Revolver Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins andIncrease, subject to clause the consent of Agent, not to be unreasonably withheld or delayed, (ie) aboveBorrower Agent shall deliver or cause to be delivered any officers’ certificates, amortization with respect to any Incremental Term Loanboard resolutions, for any Incremental Loan shall be determined legal opinions or other documents reasonably requested by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin Agent in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent connection with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental LoanRevolver Commitment Increase, and (in consultation with Agentf) shall specify (x) upon the time period within which each reasonable request of any Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) made at least five Business Days from prior to the effective date of delivery of a Revolver Commitment Increase in accordance with this Section 2.17 (the “Increase Effective Date”), the Borrower shall have provided to such notice to the Lenders Lender, and the Eligible Financial Institutions). No such Lender shall be obligated reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation, in each case at least three Business Days prior to provide the Increase Effective Date and (y) at least three Business Days prior to the Increase Effective Date, any Incremental LoanObligor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, unless it to each Lender that so agreesrequests, a Beneficial Ownership Certification in relation to such Obligor. Each Agent shall promptly notify the Applicable Lenders of the requested Revolver Commitment Increase and, within 10 Business Days, thereafter, each Applicable Lender shall notify Agent within if and to what extent such time period whether or not it agrees Applicable Lender commits to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than increase its current Applicable Commitment Percentage of such Incremental LoanCommitment. Any Applicable Lender not responding within such time period shall be deemed to have declined an increase. Agent may allocate, in its discretion, the increased Commitments among committing Applicable Lenders and, if necessary, Eligible Assignees. Provided the conditions set forth in Section 6.2 are satisfied, total applicable Commitments shall be increased by the requested amount (or such lesser amount committed by Applicable Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 45 days following Borrower Agent’s Revolver Commitment Increase request. Agent, Borrower Agent, Borrower(s) within the applicable Borrower Group, and new and existing Applicable Lenders shall execute and deliver such documents and agreements as Agent US-DOCS\123034949.14 deems appropriate to increase its commitmentevidence the Revolver Commitment Increase in and allocations of the applicable Commitments. At such timeOn the effective date of an increase, the applicable Revolver Usage and other exposures under the applicable Commitments shall be reallocated among Applicable Lenders, and settled by Agent if necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Applicable Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments. This Section 2.1.7 shall supersede any provisions in Section 14.1.1 to the contrary.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than 10 Business Days’ notice to Agent, as long as (a) Notwithstanding anything to the contrary contained requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 5,000,000 and is offered on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amountsame terms as existing Commitments, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loanexcept for a closing fee specified by Borrowers, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to total increases under this Section 2.3 do not exceed $75,000,000 and no more than five increases are made; provided that the Commitment Increase (as defined in the First Amendment) shall be disregarded for purposes of the limits set forth the requested amount and, subject to subsection in this clause (a) of this Section 2.3, proposed terms of the Incremental Loanb), and (in consultation with Agentc) the requested increase does not cause the Commitments to exceed 90% of any applicable cap under any intercreditor or subordination agreement (including the Intercreditor Agreement). Agent shall specify promptly notify Lenders of the time period requested increase and, within which five Business Days thereafter, each Lender shall notify Agent if and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of what extent such notice Lender commits to the Lenders and the Eligible Financial Institutions)increase its Commitment. No Lender shall be is obligated to provide any Incremental Loanincrease, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any and any Lender not responding within such time period shall be deemed to have declined an increase. If ▇▇▇▇▇▇▇ fail to commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. Agent may allocate, in consultation with Borrowers, the increased Commitments among committing Lenders and, if necessary, Eligible Assignees. Total Commitments shall be increased by the requested amount (or such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided (i) the conditions set forth in Section 6.2 are satisfied at such time and (ii) flood insurance diligence and documentation have been completed as required by all Flood Laws or otherwise in a manner satisfactory to all Lenders. Agent, Obligors, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase its commitmentin and allocations of Commitments and Obligors shall pay any reasonable and documented out-of-pocket fees and expenses incurred in connection therewith. At such timeOn the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Increase in Commitments. (a) Notwithstanding anything Upon notice to the contrary contained Administrative Agent, at any time after the Effective Date, the Borrower may request that Additional Revolving Credit Commitments be provided by the existing Lenders (in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutionsaccordance with their Pro Rata Share), Borrowers may, prior and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the earlier of Administrative Agent within 10 Business Days after Borrower’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Maturity Date and Commitments and/or (y) the Term Loan Maturity Date, request on up Borrower may identify one or more financial institutions which are not existing Lenders that are reasonably acceptable to three occasions an increase in the Total Administrative Agent to provide such Additional Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), Commitments; provided that:
that (i) after giving effect to any such Additional Revolving Credit Commitments, the final maturity date aggregate amount of any Incremental Term Loan Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall be no earlier than the Term Loan Maturity Date;
not exceed $100,000,000, (ii) the each request for Additional Revolving Credit Maturity Date Commitments shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
minimum increments of $20,000,000, (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, Borrower shall not make more than five such requests for any Incremental Loan shall be determined by the Borrowers Additional Revolving Credit Commitments and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of any Additional Revolving Credit Advances shall be the Term Loansame as those for the existing Revolving Credit Advances, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory except that the Borrower shall be permitted to pay upfront fees to the Agent and Additional Revolving Credit Lenders in amounts to be agreed. Notwithstanding anything contained herein to the Borrowercontrary, the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments.
(b) Each notice from Borrowers pursuant Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender 2.18 shall be obligated added to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As a condition precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower shall deliver to the Administrative Agent a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an "Incremental Loan Amendment"earlier date and without duplication of any materiality qualifiers applicable thereto), (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith. On each Additional Revolving Credit Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and, as appropriate, and the other Transaction Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all purposes of this Agreement and the other Loan Documents. Subject to Section 13.2, the Incremental Loan .
(c) Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of Lendersany Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriatereasonably necessary, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Revolving Credit Commitment.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Provided that no Default or Event of Default has occurred and is continuing, subject to the contrary contained in this Agreement terms and provided all of the conditions set forth in this Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify 2.10 and with the Lenders and the Eligible Financial Institutions)approval of Administrative Agent, Borrowers mayshall have the option, prior at any time and from time to time, before the earlier Maturity Date to request the increase of the Total Real Estate Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term increase of the Total A/R Revolving Loan Amount Commitment (each, a “Commitment Increase”), in an aggregate amount not to exceed $140,000,000.00100,000,000.00 (such that the Total Commitment shall not exceed $500,000,000.00), by giving written notice to Administrative Agent (each, an “Increase Notice”), each of which shall specify the date (each, an “Increase Effective Date”) on which Borrowers propose that the applicable Commitment Increase shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent, and the Commitment to be increased; provided that any such individual increase of the Real Estate Revolving Loan Commitment or the A/R Revolving Loan Commitment must be in a minimum amount of $15,000,000 on each occasion 5,000,000.00 and not increments of $5,000,000.00 in excess thereof unless otherwise approved by Administrative Agent in its sole discretion. Upon receipt of any Increase Notice, Administrative Agent shall consult with KeyBanc and shall notify Parent of the amount of the facility fees to exceed $50,000,000 be paid to any Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide a portion of the Commitment Increase pursuant to such Increase Notice in the aggregate (any connection with such increase in the Term Total Real Estate Revolving Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental or Total A/R Revolving Loan Commitment" , as the case may be (which shall be in addition to the fees to be paid to Administrative Agent and such loan an "Incremental KeyBanc pursuant to the Administrative Agent Fee Letter). If Borrowers agree to pay the facility fees so determined, Administrative Agent shall send a notice to all Real Estate Revolving Loan" and together with Loan Lenders or A/R Revolving Loan Lenders, as the Incremental Term Loancase may be (each, each an "Incremental Loan"a “Commitment Increase Request Notice”), informing them of Borrowers’ request to increase the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, and of the facility fees to be paid with respect thereto. Each Real Estate Revolving 65 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 Loan Lender or A/R Revolving Loan Lender, as the case may be, who desires to provide a portion of the Commitment Increase upon such terms shall provide Administrative Agent with a written commitment letter specifying the portion of the Commitment Increase which it is willing to provide prior to such deadline as may be specified in the Commitment Increase Request Notice. If the requested increase is oversubscribed, Administrative Agent and KeyBanc shall allocate the Commitment Increase among the Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide such commitment letters on such basis as Administrative Agent and KeyBanc shall determine in their sole discretion. If the increases to the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, so provided thatare not sufficient to provide the full amount of the Commitment Increase requested by Borrowers, then Administrative Agent, KeyBanc or Borrowers may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Administrative Agent, KeyBanc and Parent) to become a Real Estate Revolving Loan Lender or an A/R Revolving Loan Lenders, as the case may be, and provide a portion of the Commitment Increase. Administrative Agent shall provide all Lenders with a notice setting forth the amount, if any, of the Commitment Increase to be provided by each Real Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, and the revised Real Estate Revolving Loan Commitment Percentages or A/R Revolving Loan Commitment Percentages, as the case may be, which shall be applicable after the Increase Effective Date. In no event shall any Lender be obligated to increase its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be.
(b) The terms and provisions of the Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to the Commitment Increases shall be as follows:
(i) terms and provisions of Loans made pursuant to the final maturity date of any Incremental Term Loan Commitment Increases shall be no earlier than identical to the Term existing Real Estate Revolving Loans or A/R Revolving Loans, as the case may be (except as otherwise set forth in Section 2.10(a) with respect to the facility fees paid in connection therewith), it being understood that the Loans made pursuant to the Commitment Increases will be, for all intents and purposes, Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, and all references in the Loan Maturity Date;
Documents to Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to the Commitment Increases that are Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to this Agreement; and (ii) the maturity date of Real Estate Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan Loans or the A/R Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicablecase may be, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Maturity Date") and the final allocation of such increase.
(c) Incremental Term Loans Upon each Increase Effective Date of each increase in the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, pursuant to this Section 2.10, (i) the applicable Commitment Increase shall become Term Loans under this Agreementbe effected by a joinder agreement (the “Increase Joinder”) executed by Borrowers, Guarantors, Administrative Agent and each Lender making a portion of such Commitment Increase, in form and substance reasonably satisfactory to each of them, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.10, (ii) Administrative Agent may unilaterally revise Schedule 1.1
(a) to reflect the name and address, Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be, and Real Estate Revolving Loan Commitment Percentage or A/R Revolving Loan Commitment Percentage, as the case may be, of each Lender following such increase and (iii) Borrowers shall execute and deliver to Administrative Agent a new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, for each Real Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, whose Real Estate 66 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be, has changed so that the principal amount of such Real Estate Revolving Loan Lender’s or A/R Revolving Loan Lender’s, as the case may be, Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall equal its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be. Administrative Agent shall deliver such replacement Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, to the respective Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, in exchange for the Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, replaced thereby which shall be surrendered by such Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be. Each such new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall provide that it is a replacement for the applicable surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, and that it does not constitute a novation, shall be dated as of the applicable Increase Effective Date and shall otherwise be in substantially the form of the replaced Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be. Concurrently with the issuance of any new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, pursuant to this Section 2.10(c), Borrowers shall deliver an opinion of counsel, addressed to the Lenders and Administrative Agent, relating to the due authorization, execution and delivery of such new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, and the enforceability thereof, in form and substance substantially similar to the opinion delivered in connection with the first disbursement under this Agreement. The surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall be canceled and returned to Borrowers.
(d) Notwithstanding anything to the contrary contained herein, Borrowers may not request any Commitment Increase unless the following conditions precedent are satisfied prior to the effectiveness of thereof, which conditions cannot be waived without the consent of all of the Lenders: (i)
Appears in 1 contract
Sources: Senior Secured Credit Agreement (American Healthcare REIT, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrower may, by written notice to the contrary contained Agent from time to time, request Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments in this Agreement and an aggregate amount not to exceed the Incremental Revolving Credit Amount from one or more Incremental Lenders, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided all that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which approval shall promptly notify not be unreasonably withheld). Such notice shall set forth (i) the Lenders amount of the Incremental Revolving Credit Commitments or Other Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the Eligible Financial Institutionsremaining Incremental Revolving Credit Amount), Borrowers may(ii) the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, prior unless otherwise agreed to by the Agent) and (iii) whether the Borrower is requesting Incremental Revolving Credit Commitments or commitments to make revolving loans with terms different from the Revolving Loans (“Other Revolving Loans”).
(b) The Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the earlier approval of the Agent (which approval shall not be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the Agent an Incremental Revolving Credit Maturity Date Assumption Agreement and such other documentation as the Term Loan Maturity Date, request on up Agent shall reasonably specify to three occasions an increase in evidence the Total Incremental Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Other Revolving Credit Commitment an "Commitments, as applicable, of such Incremental Lender. Each Incremental Revolving Loan Commitment" and such loan an "Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), Loans or Other Revolving Loans to be made thereunder; provided that:
(i) , without the prior written consent of all Lenders, the final maturity date of any Incremental Term Loan Other Revolving Loans shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;Date.
(iiic) the interest rate margins and, subject to clause (i) above, amortization The Applicable Rate with respect to any Incremental Term Loan, for any Incremental Loan Revolving Loans shall be determined by the Borrowers same as the Applicable Rate for the existing Revolving Loans and the Lenders under Applicable Rate with respect to any Other Revolving Loans shall not be greater than the Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans may be increased (but may not be decreased) to equal the Applicable Rate for such Incremental Loan provided that if Revolving Loans or such Other Revolving Loans to satisfy the interest rate margin in respect requirements of this paragraph (c). The other terms of any Incremental Loan exceeds Revolving Loans shall be the Applicable Margin for same as the Term Loan or terms of the other Revolving Loans, as applicable, then . The other terms of any Other Revolving Loans and the Applicable Margin for Term Loan or the Incremental Revolving Loans, as applicable, shall be increased so that the interest rate margin Credit Assumption Agreement in respect of such loan is equal thereof, to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally extent not consistent with the terms of applicable to the Term LoanRevolving Loans hereunder, or Revolving Loan, as applicable, or as shall otherwise be reasonably satisfactory to the Agent and, to the extent that such Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or are more favorable to the Lenders making such Other Revolving Loans, the existing Lenders shall be entitled to the benefit of such rights and the Borrower.
(b) Each notice from Borrowers pursuant to provisions so long as such Other Revolving Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Section 2.3 shall Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the requested amount andpart of any Person effective as of the date of such Incremental Revolving Credit Assumption Agreement. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, subject upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to subsection the extent (abut only to the extent) of this Section 2.3, proposed necessary to reflect the existence and terms of the Incremental Loan, Revolving Credit Commitments or Other Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice furnished to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseother parties hereto.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Subject to the contrary contained in this Agreement terms and provided all of the conditions set forth in Section 7.1(cherein, the Company shall have the right, from time to time and upon at least ten (10) have been satisfied, upon Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice to the Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial Institutionsan “Incremental Request”), Borrowers may, prior to request to add one or more tranches of term loans (the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "“Incremental Term Loan" Loans”; and any such credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase in the Aggregate Revolving Credit Commitment an "Commitments (the “Incremental Revolving Loan Commitment" Commitments”; and such loan an "revolving loans made thereunder the “Incremental Revolving Loan" and Loans”; the Incremental Revolving Loans, together with the Incremental Term LoanLoans are referred to herein as the “Incremental Facility Loans”) subject, each an "Incremental Loan")however, provided thatin any such case, to satisfaction of the following conditions precedent:
(ia) the final maturity date aggregate amount of all Incremental Facility Loans effected pursuant to this Section 2.14 shall not exceed the sum of (x) $250,000,000 (the “Fixed Incremental Amount”) plus the maximum principal amount of Indebtedness that may be incurred at such time that would not cause the Consolidated Debt to EBITDA Ratio to exceed 3.00:1.00 on a Pro Forma Basis (the “Ratio Incremental Amount”); provided, that, each Incremental Facility Loan shall be deemed to be incurred first under the Ratio Incremental Amount with the balance incurred under the remaining Fixed Incremental Amount, unless the Company otherwise elects pursuant to a written notice to make such incurrence or increase in a different order; provided, further, any Incremental Facility Loan incurred under the Fixed Incremental Amount may be reclassified at any time, as the Company may elect from time to time, as incurred under the Ratio Incremental Amount if the Company meets the applicable ratio under the Ratio Incremental Amount at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Term Loan (or would have met such ratio, in which case, such reclassification shall be no earlier than deemed to have automatically occurred if not elected by the Term Loan Maturity DateCompany);0;
(iib) on the Revolving Credit Maturity Date shall not be modified by date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the increase in incurrence of such Incremental Facility Loans (assuming that the Revolving Credit Commitment with full amount of the Incremental Revolving Loan Commitment;
Facility Loans shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing (iii) the interest rate margins and, but subject to clause (i) above, amortization Section 1.10 with respect to any Incremental Term LoanFacility the proceeds of which will be used to finance any Limited Condition Transaction);
(c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.13 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this clause (d), the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(e) unless otherwise agreed by the Administrative Agent, such Incremental Facility Loans shall be in a minimum amount of $25,000,0000 and in integral multiples of $5,000,0000 in excess thereof; provided, that such Incremental Facility Loans may be in an amount equal to the remaining aggregate amount of Incremental Revolving Commitments and Incremental Term Loans permitted to be obtained pursuant to clause (a) above;
(f) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a);
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) any Incremental Term Loans that do not constitute additional term loans under a then existing tranche of term loans shall: (A) rank pari passu in right of payment priority with the Revolving Loans, (B) share ratably in rights in the Collateral and the Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any Loans, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any then-existing Incremental Term Loan (it being understood that, subject to the foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrowers Company and the Lenders under of such Incremental Loan provided that if Term Loans) and (E) otherwise be on terms not materially more onerous, taken as a whole, to the Company than the existing Loans (except to the extent permitted above with respect to (i) the maturity date, (ii) amortization, (iii) the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loansrate, as applicableand fees, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, other than terms which are applicable only after the then-latest Maturity Date or (v) other terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as that are otherwise reasonably satisfactory to the Agent and the Borrower.Administrative Agent);
(bi) Each notice from Borrowers pursuant to this Section 2.3 the Administrative Agent shall set forth the requested have received additional commitments in a corresponding amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and the Eligible Financial Institutions). No agreed that no existing Lender shall be obligated required to provide any an additional commitment);
(j) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make Facility Loans and the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage validity of such Incremental Loan. Any Lender not responding within such time period Facility Loans, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; and
(k) each Incremental Term Facility and any Incremental Revolving Commitments shall be deemed evidenced by an amendment (an “Incremental Facility Amendment”) to have declined this Agreement, giving effect to increase its commitment. At such timethe modifications permitted by this Section 2.14 (and subject to the limitations set forth in the immediately preceding paragraph), in accordance with Section 2.4executed by the Loan Parties, Borrowers the Administrative Agent and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the Loan not taken Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by existing Lendersthis Section 2.14. Agent Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall notify Borrowers be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject solely to the satisfaction on the date thereof of each Lender of the Lenders’ conditions set forth above and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine such other conditions as requested by the effective date (Lenders under the "Increase Effective Date") and the final allocation of such increaseIncremental Facility Loans established in connection therewith.
(cl) Incremental Term Loans This Section shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant supersede any provisions in Section 2.13 or 10.01 to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3contrary.
Appears in 1 contract
Sources: Third Amendment to Second Amended and Restated Credit Agreement (Methode Electronics Inc)
Increase in Commitments.
(a) The Borrower shall have the right, at any time prior to the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Revolver Commitments (each such requested increase, a “Commitment Increase”), by having one or more existing Lenders increase their respective Revolver Commitments then in effect (each, an “Increasing Lender”), by adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $55,000,000, (iii) no Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender, and (vii) Section 5.07 will be adjusted by mutual consent of the Borrower and the Majority Lenders. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such Conformed Credit Agreement - Page 56 notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender. Other than fees payable to the Administrative Agent, any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and the Administrative Agent, shall be for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent). The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrowers may reasonably require, all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower to effect a Commitment Increase pursuant to this Section 2.14.
(c) If the aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Section 2.14 to the contrary contained in this Agreement contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and provided all of no Commitment Increase shall be effective) unless the conditions set forth in Section 7.1(c2.14(a) have been satisfied, upon notice to Agent (which shall promptly notify as well as the Lenders and following conditions precedent are satisfied on the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity applicable Commitment Increase Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) The Administrative Agent shall have received the final maturity date following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 2.14(e), all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Commitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (x) as of the Commitment Increase Date, all representations and warranties of the Borrower and the Guarantors contained in Conformed Credit Agreement - Page 57 this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any Incremental Term Loan such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or opinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall be no earlier than have reasonably requested; and
(F) such other documents or items that the Term Loan Maturity Date;Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the Revolving Credit Maturity Date case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall not have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be modified by deemed to be repaid, (ii) immediately after the increase effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the Revolving Credit Commitment aggregate principal amount of the Initial Advances and of the types and for the Interest Period specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with the Incremental Revolving Loan Commitment;
Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and (z) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest rate margins andon the Initial Advances to the Lenders entitled thereto, subject and (vii) the signature pages hereto shall be deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin above in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, each Euro-Dollar Advance shall be increased so that subject to indemnification by the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers Borrower pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.38.05 if the Commitment Increase Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Platinum Holdings shall have the right, at any time and from time to time after the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon Restatement Effective Date by written notice to Agent (which shall promptly notify and in consultation with the Lenders and the Eligible Financial Institutions)Administrative Agent, Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitments (each such requested increase, a “Commitment Increase”), by having one or the Term Loan Amount more existing Lenders increase their respective Commitments then in effect (each, and “Increasing Lender”), by adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $15,000,000 on each occasion and not to exceed 25,000,000 or an integral multiple of $50,000,000 1,000,000 in the aggregate (any such increase in the Term Loan Amountexcess thereof, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) immediately after giving effect to any Commitment Increase, (y) the Revolving Credit Maturity Total Commitments shall not exceed $450,000,000 and (z) the aggregate of all Commitment Increases effected after the Restatement Effective Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
exceed $150,000,000, and (iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan no existing Lender shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect obligated to increase its Commitment as a result of any Incremental Loan exceeds the Applicable Margin request for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin a Commitment Increase by Platinum Holdings unless it agrees in respect of such loan is equal its sole discretion to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowerdo so.
(b) Each notice from Borrowers pursuant Additional Lender must qualify as an Eligible Assignee (the approval of which by the Administrative Agent shall not be unreasonably withheld or delayed) and Platinum Holdings and each Additional Lender shall execute a joinder agreement together with all such other documentation as the Administrative Agent and Platinum Holdings may reasonably require, all in form and substance reasonably satisfactory to this Section 2.3 shall set forth the requested amount andAdministrative Agent and Platinum Holdings, subject to subsection (a) evidence the Commitment of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each such Additional Lender and its status as a Lender hereunder.
(c) In connection with each Eligible Financial InstitutionCommitment Increase, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and Borrowers Platinum Holdings shall determine the effective date (the "“Commitment Increase Effective Date") ”), which shall be a Business Day not less than 30 days prior to the Commitment Termination Date, and the final allocation of such increase.
(c) Incremental Term Loans Commitment Increase. The Administrative Agent shall become Term Loans under this Agreementpromptly notify Platinum Holdings and the Lenders of the final allocation of such Commitment Increase and the Commitment Increase Date. The Administrative Agent is hereby authorized, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, on behalf of the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such to enter into any amendments to this Agreement and the other Transaction Credit Documents as may the Administrative Agent shall reasonably deem appropriate to effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.19 to the contrary, no increase in the Total Commitments pursuant to this Section 2.19 shall be necessary effective unless:
(i) The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed joinder agreement together with all other documentation required by the Administrative Agent pursuant to Section 2.19(b);
(B) an instrument, duly executed by each Credit Party, acknowledging and reaffirming its obligations under this Agreement, the Security Documents and the other Credit Documents to which it is a party and the validity and continued effect of the Liens granted in favor of the Administrative Agent thereunder;
(C) a certificate of the secretary or appropriatean assistant secretary of each Credit Party, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such Credit Party approving or consenting to such Commitment Increase; and
(D) a certificate of a Financial Officer of Platinum Holdings, certifying that (y) as of the Commitment Increase Date, all representations and warranties of the Credit Parties contained in this Agreement and the other Credit Documents are true and correct in all material respects, both immediately before and after giving effect to the Commitment Increase and any Borrowings or Letters of Credit issued in connection therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct in all material respects as of such date), and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings or Letters of Credit issued in connection therewith and the reasonable opinion application of the proceeds thereof); and
(ii) In the case of any Credit Extension in connection with such Commitment Increase, the conditions precedent set forth in Section 4.2 shall have been satisfied.
(e) To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Commitments, on the Commitment Increase Date, (i) all then outstanding LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, the applicable Borrowers shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Lender’s Ratable Share (calculated without giving effect to the BorrowerCommitment Increase) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Lender’s Ratable Share (calculated after
(a) shall automatically be amended to reflect the Commitments of all Lenders after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be subject to indemnification by the applicable Borrowers pursuant to the provisions of Section 2.17 if the Commitment Increase Date occurs other than on the last day of the Interest Period relating thereto.
(f) To the extent necessary to keep the outstanding Letters of Credit ratable in the event of any non-ratable increase in the Total Commitments, as soon as possible following the Commitment Increase Date, each Syndicated Letter of Credit shall be amended to reflect the new Ratable Shares of the applicable Lenders, it being understood for the avoidance of doubt that such amendment shall not be deemed a Credit Extension hereunder. Until a Syndicated Letter of Credit has been amended in accordance with this Section 2.32.19(f), each applicable Lender shall be deemed to have sold and transferred to each of the other Lenders, and each such other Lenders shall be deemed irrevocably and unconditionally to have purchased and received from such Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s revised Ratable Share, in such Syndicated Letter of Credit, each drawing made thereunder, the obligations of any Account Party under this Agreement with respect thereto and any security therefor or guaranty pertaining thereto. No Credit Party shall be obligated to pay any fees or increase in fees as a result of any of the actions taken pursuant to this Section 2.19(f) other than the customary fees ▇▇▇▇▇ Fargo requires in connection with the amendment of letters of credit.
Appears in 1 contract
Sources: Credit Agreement (Platinum Underwriters Holdings LTD)
Increase in Commitments. For a period of 90 days following the Closing Date, the Arranger (ain consultation with the Documentation Agent) Notwithstanding anything to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions)Company shall have the right to solicit additional financial institutions to become Lenders for purposes of this Agreement, Borrowers may, prior or to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up encourage any Lender to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan its Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
that (i) the final maturity date of any Incremental Term Loan each financial institution that becomes a Lender shall agree to become party to, and shall assume and agree to be no earlier than the Term Loan Maturity Date;
bound by, this Agreement, subject to all terms and conditions hereof; (ii) the Revolving Credit Maturity Date Administrative Agent shall not be modified by have any obligation to the Borrowers or to any Lender to solicit additional financial institutions or any increase in the Commitment of any Lender pursuant to this Section 2.01(b); (iii) no Lender shall have an obligation to the Borrowers, the Agents or any other Lender to increase its Commitment or its Ratable Share; and (iv) in no event shall the addition of any Lender or Lenders or the increase in the Revolving Credit Commitment with of any Lender increase the Incremental Revolving Loan Commitment;
(iiiCommitments to an amount greater than $130,000,000. Upon the addition of any Lender, or the increase in the Commitment of any Lender, Schedule 1.01(B) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined amended by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Administrative Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanreflect such addition or such increase, and (in consultation with Agent) the Administrative Agent shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice deliver to the Lenders and the Eligible Financial InstitutionsCompany a copy of revised Schedule 1.01(B). No If, at any time that the Commitments are increased pursuant to this Section 2.01(b), there are Revolving Credit Loans then outstanding, each new Lender, and each existing Lender that has increased its Commitment, shall purchase Revolving Credit Loans from each other Lender in an amount such that, after such purchase or purchases, the amount of outstanding Revolving Credit Loans from each Lender shall be obligated equal such Lender's respective Ratable Share, as modified to provide any Incremental Loangive effect to such increase, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make multiplied by the requested Incremental Loan, and, if so, whether by an aggregate amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Revolving Credit Loans outstanding from all Lenders. Agent shall notify Borrowers and each Lender of To the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and extent that any outstanding Revolving Credit Loans bear interest at the Euro-Rate Option, the Borrowers shall determine the effective date (the "Increase Effective Date"pay any additional costs described in Section 4.06(b) and the final allocation of such increaseincurred by any Lender.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility (Borders Group Inc)
Increase in Commitments. (a) Notwithstanding anything The Borrower may by written notice to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(cAdministrative Agent elect to seek (x) have been satisfied, upon notice commitments (“Additional Revolving Commitments”) to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of increase the Revolving Credit Maturity Date and Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum aggregate principal amount of $15,000,000 on each occasion and not any existing Class of Term Loans or to exceed $50,000,000 in the aggregate (any such increase in the establish one or more new Classes of Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), Loans; provided that:
: (i) the final maturity date aggregate amount of any all Additional Commitments shall not exceed the Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
Cap; (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the Revolving Credit Maturity Date shall not be modified by the increase limit set forth in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to preceding clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.);
(b) Each such notice from Borrowers pursuant to this Section 2.3 shall set forth specify (x) the requested amount anddate (each, subject to subsection an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (ay) of this Section 2.3, proposed terms the identity of the Incremental Loan, and Persons (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (of which shall in no event be less than fifteen an Eligible Assignee (15for this purpose treating a Lender of Additional Commitments as if it were an assignee)) Business Days from whom the date of delivery of such notice to Borrower proposes would provide the Lenders Additional Commitments and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken Additional Commitment to be provided by existing Lenderseach such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent shall notify Borrowers and each Lender a certificate dated as of the Lenders’ Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and Eligible Financial Institutions' responses after giving effect to each request made hereunder. Agent the Additional Commitments (and Borrowers shall determine assuming full utilization thereof) the effective date requirements of Section 2.20(a)(i), (the "Increase Effective Date"iv) and (x) are satisfied, and setting forth the final allocation calculation of such increasethe Incremental Cap.
(c) Incremental On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall become Term make such Revolving Loans under this Agreementin accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Additional Credit Extension Amendment may, without the consent of Lenders, effect may provide for such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.or
Appears in 1 contract
Sources: Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrowers may, any time or from time to time after the later of (i) the Closing Date and (ii) the earlier of (A) sixty (60) days after the Closing Date and (B) the date upon which a Successful Syndication is achieved, by written notice to the contrary contained in Administrative Agent (an “Incremental Facility Request”) request the establishment of incremental or additional term loan facilities (each, an “Incremental Term Facility”, the commitments thereunder, the “Incremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”). Any such Incremental Term Facility may be implemented by increasing the amount of loans and commitments under the existing Facility or by adding a new facility to this Agreement Agreement. Subject to the terms and provided all of the conditions set forth in this Section 7.1(c) have been satisfied2.21, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term LoanFacilities shall be funded on the relevant Increased Amount Date; provided that no Incremental Term Facility shall be incurred on such date to the extent that the aggregate principal amount of such Incremental Term Facility when combined with the aggregate principal amount of all Incremental Term Facilities then outstanding exceeds $150,000,000.
(b) Each such Incremental Facility Request shall specify the date (an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Commitments and the date the Incremental Term Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrowers shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an "“Incremental Loan"Lender”) to whom the Incremental Term Commitments have been allocated, which allocation shall be made at the Borrowers’ sole discretion. Any Lender approached to provide all or a portion of the Incremental Term Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Commitment (it being understood that the Borrowers have no obligation to approach any Lender, and no Lender is committing to provide any Incremental Term Commitment until such time as such Lender agrees in writing to provide all or a portion of the Incremental Term Commitment), provided that.
(c) As of any Increased Amount Date:
(i) no Default or Event of Default shall exist and be continuing or would immediately result from the final maturity date incurrence of any such Incremental Term Loan shall be no earlier than the Term Loan Maturity DateFacility;
(ii) the Revolving Credit Maturity Date incurrence of any such Incremental Term Facility shall not be modified by the increase in the Revolving Credit Commitment compliance with the Incremental Revolving Loan Commitmentall obligations under Regulation U;
(iii) to the interest rate margins and, subject extent that such Incremental Term Loans are not made as part of the Term Facility (in which case all terms thereof shall be identical to clause the terms of the Term Facility):
(iA) above, amortization with respect to the final maturity date under any Incremental Term Loan, Facility shall not be earlier than the Term Maturity Date;
(B) the amortization requirements for any Incremental Loan Term Facility shall be determined by the Borrowers and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than the Weighted Average Life to Maturity of the Initial Term Loans outstanding under such the Term Facility (without giving effect to any prepayments (other than amortization));
(C) the Incremental Term Facility shall not be (x) guaranteed by any Person who is not, or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the Loan provided that Documents;
(iv) if the interest rate margin in respect of All-In Yield applicable to any Incremental Loan exceeds Term Loans under any Incremental Term Facility shall be 0.50% per annum or more higher than the Applicable Margin corresponding All-In Yield on the Term Facility as of the date of incurrence, then the All-In Yield applicable to the Term Facility shall be increased to cause the then applicable All-In Yield for the Term Loan or Facility to equal the Revolving Loans, as applicable, All-In Yield then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal applicable to the interest rate margin for Incremental Term Loans minus 0.50% per annum (this provision, the Incremental Loan“MFN Protection”); and
(ivv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any provisions of the Incremental Loan Term Commitments shall be generally as agreed between the Borrowers and the applicable Incremental Lenders providing such Incremental Term Commitments, subject to satisfying the requirements of this Section 2.21(c) and the terms of such Incremental Term Commitments shall be effected pursuant to an amendment to this Agreement (an “Incremental Amendment”) executed and delivered by the Borrowers, the Administrative Agent and one or more Incremental Lenders; provided that (x) such Incremental Term Loans may participate in any mandatory prepayment under Section 2.10 hereof on a pro rata basis (or on a basis less than pro rata), but not on a basis that is more favorable than pro rata and (y) with respect to terms not addressed by this Section 2.21(c), if such terms (other than pricing terms) of the Incremental Term Commitments are not, taken as a whole, substantially consistent with the terms of the Term LoanFacility, such terms shall not be more restrictive, when taken as a whole, than the terms of the Term Facility (except for terms applying after the Term Maturity Date or Revolving LoanExtended Maturity Date, as applicable).
(d) On any Increased Amount Date on which any Incremental Term Commitment becomes effective or Incremental Term Loans are funded, subject to the foregoing terms and conditions, each Incremental Lender to the extent not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Commitment or as otherwise Incremental Term Loan; provided that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall be reasonably satisfactory to the Administrative Agent and the BorrowerBorrowers to the extent consent would be required under Section 9.04(b) for an assignment of Loans to such Incremental Lender.
(be) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) For purposes of this Section 2.3Agreement, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period Term Loans shall be deemed to have declined to increase its commitmentbe Loans. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Each Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lendersany Lender, effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section 2.32.21.
Appears in 1 contract
Sources: Credit Agreement (Global Infrastructure Investors III, LLC)
Increase in Commitments. (a) Notwithstanding anything After the Closing Date, the Agent may, from time to time upon five (5) Business Days prior notice by Capital on behalf of the Obligors of a request to increase the Aggregate Commitment, increase the Aggregate Commitment by (x) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (y) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided thatfollowing conditions:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Dateeach Subsequent Lender is an Eligible Assignee;
(ii) Borrowers execute (A) a new Note payable to the Revolving Credit Maturity Date shall not be modified order of a Subsequent Lender, if requested by such Subsequent Lender, or (B) a replacement Note payable to the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitmentorder of an Increasing Lender, if requested by such Increasing Lender;
(iii) each Subsequent Lender executes a signature page to this Agreement;
(iv) after giving effect to the interest rate margins andadmission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, subject to clause the Aggregate Commitment does not exceed $150,000,000;
(iv) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan each increase in the Aggregate Commitment shall be determined by in the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect minimum amount of $5,000,000 or a greater integral multiple of $1,000,000;
(vi) no admission of any Incremental Loan exceeds Subsequent Lender shall increase the Applicable Margin for Commitment of any existing Lender without the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, consent of such existing Lender;
(vii) no Lender shall be increased so that an Increasing Lender without the interest rate margin in respect consent of such loan is equal to the interest rate margin for the Incremental LoanLender; and
(ivviii) except as otherwise provided in this Section 2.3, the terms and conditions applicable no Default or Event of Default exists nor would occur after giving effect to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowersuch increase.
(b) Each notice from Borrowers After the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Agent shall promptly provide to each Lender a new Schedule I to this Agreement. In the event that there are any Revolving Loans and/or Letters of Credit outstanding after giving effect to an increase in the Aggregate Commitment pursuant to this Section 2.3 shall set forth 2.9, upon notice from the requested Agent to each Lender, the amount and, subject of such Revolving Loans owing to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and the amount of each Eligible Financial Institution, is requested Lender’s L/C Participation shall be appropriately adjusted to respond (which shall in no event be less than fifteen (15) Business Days from reflect the date new Commitment Percentages of delivery of such notice to the Lenders and the Eligible Financial Institutions(in which case Obligors shall pay any amounts required under Section 4.10). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Upon notice to the contrary contained in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial InstitutionsLenders), Borrowers may, prior to the earlier of the Company may request: (i) [intentionally omitted]; (ii) [intentionally omitted]; (iii) additional Term Commitments and/or additional Revolving Credit Maturity Date Commitments pursuant to any Commitment Increase and Joinder Agreement entered into on the Term Loan Maturity Third Restatement Effective Date, request ; (iv) on up to three ten occasions an increase after the Third Restatement Effective Date (A) if a Collateral Release Period is not then in effect, other additional Term Commitments and/or additional Revolving Credit Commitments; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this clause (iv)(A) shall not exceed the greater of (x) $750,000,000 and (y) such amount as would not result in the Total Senior Secured Leverage Ratio exceeding 2.0:1.0 calculated on a Pro Forma Basis (and specifically giving pro forma effect to such increase, including in the case of any revolving facility increase, the deemed full usage of the increased portion of the commitments thereunder) and (B) if a Collateral Release Period is then in effect, other additional unsecured Term Commitments and/or additional unsecured Revolving Credit Commitment Commitments; and (v) on one or more occasions after the Third Restatement Effective Date, (A) additional Term Loan Amount by a minimum Commitments in respect of Term Loans having the same terms (including pricing as the existing Term A-3 Loans, provided that the proceeds thereof shall be used solely to repay Term A-2 Loans and/or replace 2014 Revolving Credit Commitments and to pay related fees and expenses and (B) additional 2017 Revolving Credit Commitments having the same terms (including pricing) as the existing 2017 Revolving Credit Commitments and to pay related fees and expenses, provided that the initial proceeds thereof shall be used solely to repay Term A-2 Loans and/or replace 2014 Revolving Credit Commitments. Each such addition under this Section 2.16(a) shall be in an aggregate amount of $15,000,000 on each occasion and not to exceed 5,000,000 or any whole multiple of $50,000,000 1,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrowerexcess thereof.
(b) Each notice from Borrowers Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Company, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans and (B) the Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans.
(c) Any such additional Revolving Credit Commitments (the “Additional Revolving Credit Commitments”) may be made, at the option of the Company, by either (i) increasing the US Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments with the same terms (including pricing and currency) as the existing 2017 US Dollar Revolving Credit Commitments or 2017 Multicurrency Revolving Credit Commitments, as the case may be or (ii) creating a new tranche of the Multicurrency Revolving Credit Facility with the Additional Revolving Credit Commitments of Lenders willing to fund in an Additional Alternative Currency pursuant to this Section 2.3 shall set forth which Multicurrency Revolving Credit Loans under such new tranche may be denominated in such Additional Alternative Currency.
(d) At the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms time of the Incremental Loansending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, and the Company (in consultation with the Administrative Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) ten Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial InstitutionsLenders). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to make the requested Incremental Loanprovide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage Pro Rata Share of such Incremental Loanrequested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to increase its commitmentprovide an additional Term Commitment or Revolving Credit Commitment, as applicable. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. The Administrative Agent shall notify Borrowers the Company and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. To achieve the full amount of a requested increase, the Company may also invite additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and Borrowers its counsel (each, a “Commitment Increase and Joinder Agreement”).
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Company shall determine the effective date (the "Increase “Additional Commitments Effective Date"”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the Company shall deliver to the Administrative Agent a certificate of the Company dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Company certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(e), the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default exists before or after giving effect to such addition and (iii) the Borrowers shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or Section 6.01(b) or in any subsequent delivery of financial information by the Company to the Administrative Agent prior to such time or, if and to the extent applicable, the Historical Financial Statements), assuming that the applicable additional Commitments were fully drawn on the first day of the fiscal period covered thereby.
(cf) Incremental On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing an additional Term Loans Commitment (A) shall become a “Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent Lender” for all purposes of Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents, and (B) shall make an Additional Term Loan to the Company in a principal amount equal to such additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents as (except that the interest rate, amortization payment amounts and maturity date applicable to any Additional Term Loan under an Additional Term Loan Tranche may be necessary as agreed by the Company and the applicable Lenders providing the additional Term Commitments; provided that such amortization payment amounts and maturity date shall be in accordance with the requirements of Section 2.16(b)) and (ii) each Lender or appropriate, Eligible Assignee which is providing an additional Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents with a Revolving Credit Commitment that is increased by (in the reasonable opinion case of an existing Revolving Credit Lender) or equal to (in the Agent and the Borrower, to effect the provisions case of this Section 2.3a new Revolving Credit Lender) such additional Revolving Credit Commitment.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Information Services, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrower may at any time and from time to time add additional financial institutions hereunder as Lenders or, with the contrary contained consent of a Lender, increase its Commitment, and, in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfiedeach case, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an thereby increase in the Total Revolving Credit Commitment or provided that at the Term Loan Amount by a minimum amount time of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided thataddition:
(i) the final maturity date no Default or Event of any Incremental Term Loan shall Default has occurred and is continuing or would reasonably be no earlier than the Term Loan Maturity Dateexpected to result therefrom;
(ii) all increases to the Revolving Credit Maturity Date Total Commitment as a result of the application of this Section 2.1(c) or otherwise, shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitmentat any time exceed Cdn.$250,000,000;
(iii) the interest rate margins andAgent and each Fronting Lender has consented to such financial institution becoming a Lender or, subject in the case of an existing Lender, increasing its Commitment, such consent not to clause be unreasonably withheld;
(iiv) abovethe Commitment of a new financial institution being added as a Lender pursuant to this Section 2.1(c) shall be no less than Cdn.$10,000,000;
(v) if, amortization in connection with any such increase a commitment or similar fee is paid to any new Lender based on its new Commitment (the “new money fee”), then the Borrower will also pay a corresponding fee equal to the same number of bps to the then existing Lenders based on their respective then existing Commitments to the extent such a fee was not already paid on or after the Effective Date;
(vi) concurrently with the addition of a financial institution as an additional Lender or the increase of a Lender’s Commitment, such financial institution or Lender, as the case may be, shall purchase from each other Lender, such portion of the Outstandings under the Credit Facility owed to each Lender as is necessary to ensure that the Outstandings under the Credit Facility owed to all Lenders and including therein such additional financial institution and the increased Commitment of any Lender, are in accordance with the Applicable Percentage of all such Lenders (including any new financial institution and the increased Commitment of any Lender) and such financial institution shall execute such documentation as is required by the Agent, acting reasonably, to novate such financial institution as a Lender hereunder; provided that with respect to any Incremental Term Loanportion of such Outstandings which are outstanding by way of Bankers’ Acceptance or LIBO Rate Loans, for any Incremental Loan the new financial institution or such Lender shall be determined by provide an indemnity to the Borrowers and the other Lenders under such Incremental Loan (provided that if no such indemnity may exceed two months in duration unless agreed to by all of the interest rate margin affected Lenders) in respect order to ensure such Bankers’ Acceptances and LIBO Rate Loans are outstanding in accordance with the new Applicable Percentages of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loanall Lenders; and
(ivvii) except as otherwise the Borrower has provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent a certified copy of a directors’ resolution of the Borrower and each other Obligor authorizing any such increase in the Total Commitment (which may be the original directors’ resolutions authorizing the Credit Facility hereunder) together with a legal opinion from Borrower.
(b) Each notice from Borrowers ’s Counsel with respect thereto in substantially the same form, mutatis mutandis, as the opinion delivered pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions3.1(f). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Subject to the contrary contained in this Agreement and provided all prior written consent of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Administrative Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request consent may be contingent on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such effectuating certain amendments to this Agreement and the other Transaction Loan Documents as applicable to some or all of the Loans, which amendments shall be in form and substance reasonably acceptable to the Administrative Agent), the Borrowers shall have the right to request an increase the Delay Draw Commitments by obtaining additional Delay Draw Commitments, either from one or more of the existing Lenders or, solely to the extent that the existing Lenders do not agree to furnish the entire amount of any requested increase, another lending institution (which Commitments may be necessary provided on the same, or appropriateas and to the extent required by the Administrative Agent and applicable Lenders, different terms and conditions from the existing Delay Draw Commitments) provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000, (ii) the aggregate amount of all additional Delay Draw Commitments obtained under this Section 2.08 shall not exceed $50,000,000, (iii) the identity of any such new Lender shall be reasonably acceptable to the Administrative Agent, such approval not to be unreasonably withheld or delayed, (iv) any such new Lender assumes all of the rights and obligations of a “Lender” hereunder, (v) the procedures and requirements described in Section 2.08 have been satisfied, and (vi) the Borrowers shall have paid to the Administrative Agent and applicable Lenders any fees required by Administrative Agent and such Lender in connection therewith. Nothing contained in this Section 2.08 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Delay Draw Commitment hereunder at any time.
(b) Any amendment hereto for such an increase shall be in form and substance reasonably satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrowers and each Lender being added or increasing its Delay Draw Commitment. As a condition precedent to such an increase or addition, the Borrowers shall deliver to the Administrative Agent (i) a certificate of each Loan Party signed by an Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the reasonable opinion case of the Agent Borrowers, certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties contained in Article III and the Borrowerother Loan Documents are true and correct in all material respects (except that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects) and (2) no Default exists, and (ii) legal opinions and documents consistent with those delivered on the Closing Date, to effect the provisions extent reasonably requested by the Administrative Agent.
(c) Within a reasonable time after the effective date of any increase or addition, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect such increase or addition and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrower Representative, whereupon such revised Commitment Schedule shall replace the old Commitment Schedule and become part of this Section 2.3Agreement.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything At any time prior to the contrary contained Business Day immediately preceding the Revolving Maturity Date or the Term Maturity Date, the Borrower may effectuate one or more increases in the aggregate Revolving Commitments and/or Term Commitments (each such increase being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its Revolving Commitment and/or Term Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided, however, that (i) each such Commitment Increase shall be equal to at least $10,000,000 (or, in the event the aggregate of all previously effectuated Commitment Increases equals $20,000,000, $5,000,000), (ii) all Commitments and Advances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Revolving Commitments and Revolving Advances and the Term Commitments and Term Advances, as applicable, except as to upfront fees which may be as agreed to between the Borrower and such Increasing Lender or Additional Lender, as the case may be, (iii) the aggregate of all such Commitment Increases shall not exceed $25,000,000, (iv) such Commitment Increase shall not effect an increase in the aggregate Revolving Commitments if the Revolving Maturity Date has occurred and (v) such Commitment Increase shall not effect an increase in the aggregate Term Commitments if the Term Maturity Date has occurred. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.15 to the Administrative Agent and the Lenders. This Section 2.15 shall not be construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower or to arrange for any other Person to advance or to commit to advance any credit to the Borrower.
(b) The Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the receipt by the Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the Administrative Agent signed by the Borrower, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, (B) such evidence of appropriate authorization on the part of the Borrower with respect to such Commitment Increase and such legal opinions as the Administrative Agent may reasonably request and (C) if the Commitment Increase involves an increase of Term Commitments, an amendment to this Agreement signed by the Borrower, the Administrative Agent and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Article 2 to account for such increase in Term Commitments; provided all that, the amortization payments due to any Lender shall not be decreased without the consent of such Lender, (ii) the satisfaction of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders 3.2 and the Eligible Financial Institutions), Borrowers may, prior to the earlier funding by each Increasing Lender and Additional Lender of the Revolving Credit Maturity Date and Advances to be made by each such Lender to effect the Term Loan Maturity Date, request on up to three occasions an increase prepayment requirement set forth in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"Section 2.4(c)(vii), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins andfunding by each Increasing Lender and Additional Lender of the Term Advances in the amount of such Lender’s increased Term Commitment; (iv) receipt by the Administrative Agent of a certificate of an authorized officer of the Borrower certifying (A) both before and after giving effect to such Commitment Increase, subject to clause no Default has occurred and is continuing, (iB) above, amortization with respect the representations and warranties contained in Article 4 shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any Incremental Term Loanrepresentations and warranties that already are qualified or modified by materiality in the text thereof) on such date, for except that any Incremental Loan representation and warranty which by its terms is made as of a specified date shall be determined required to be true and correct only as of such specified date, and (C) the pro forma compliance with the covenants in Sections 6.20 and 6.21, after giving effect to such Commitment Increase and the funding of the Term Advances in connection therewith, and (v) receipt by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan Increasing Lender or the Revolving LoansAdditional Lender, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, of all such fees as applicable, shall be increased so that the interest rate margin in respect of agreed to between such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent Increasing Lender and/or Additional Lender and the Borrower.
(bc) Each notice from Borrowers pursuant to this Section 2.3 shall set forth On such Increase Date if the requested amount andRevolving Commitments are then being increased, subject to subsection (a) of this Section 2.3, proposed terms each Lender’s share of the Incremental Loan, and (in consultation with Agent) Letter of Credit Exposure on such date shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall automatically be deemed to have declined equal such Lender’s applicable pro rata share of such Letter of Credit Obligations (such pro rata share for such Lender to increase its commitment. At such time, be determined as of the Increase Date in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement its Revolving Commitment on such date as Lenders hereunder for the portion a percentage of the Incremental Loan not taken aggregate Revolving Commitment on such date) without further action by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseany party.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (Steel Excel Inc.)
Increase in Commitments. (a1) Notwithstanding anything The Borrower may propose to increase the contrary contained in this Agreement and provided all aggregate amount of the conditions Commitments by an aggregate amount of not less than $25,000,000 or an integral multiple of $1,000,000 in excess thereof (the "Proposed Aggregate Commitment Increase") in the manner set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan")below, provided that:
(i) no Default shall have occurred and be continuing either as of the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;Notice of Increase (as hereinafter defined) or as of the Increase Date (as hereinafter defined); and
(ii) after giving effect to any such increase, the Revolving Credit Maturity Date aggregate amount of the Commitments shall not be modified by the exceed $850,000,000.
(2) The Borrower may request an increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms aggregate amount of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory Commitments by delivering to the Agent and a notice in substantially the Borrower.
form of Exhibit B-3 (b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) a "Notice of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from Increase"; the date of delivery of such notice thereof to the Lenders and Agent being the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make "Increase Notice Date") specifying (1) the requested Incremental Loan, and, if so, whether amount by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined which the Borrower proposes to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion aggregate amount of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of Commitments (the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine "Proposed Aggregate Commitment Increase"), (2) the effective proposed date (the "Increase Effective Date") on which the Commitments would be so increased (which Increase Date may not be fewer than 30 nor more than 90 days after the Increase Notice Date) and (3) the final allocation New Lenders (as hereinafter defined), if any, to whom the Borrower proposes to offer (subject to clause (3) below) the opportunity to commit to all or a portion of the Proposed Aggregate Commitment Increase. The Agent shall in turn promptly notify each Lender of the Borrower's request by sending each Lender a copy of such increasenotice.
(c3) Incremental Term Loans Promptly after the Increase Notice Date, the Agent shall become Term Loans under this Agreementnotify each Lender of the opportunity to commit to all or any portion of the Proposed Aggregate Commitment Increase. Each Lender may in its sole discretion (but shall not be obligated to) offer to commit to all or a portion of the Proposed Aggregate Commitment Increase (such Lender's "Proposed Increased Commitment") by notifying the Agent (which shall give prompt notice thereof to the Borrower) before 11:00 A.M. (New York City time) on the date that is 10 days after the Increase Notice Date.
(4) If the aggregate Proposed Increased Commitments of all the Lenders shall be less than the Proposed Aggregate Commitment Increase, and Incremental Revolving Loans shall become Revolving Loans under this Agreement then (unless the Borrower otherwise requests) the Agent shall, on or prior to the date that is 15 days after the Increase Notice Date, notify each New Lender of the opportunity to so commit to all or any portion of the Proposed Aggregate Commitment Increase not committed to by Lenders pursuant to an amendment Section 2.01(c)(3). Each New Lender may irrevocably commit to all or a portion of such remainder (an such New Lender's "Incremental Loan AmendmentProposed New Commitment") by notifying the Agent (which shall give prompt notice thereof to the Borrower) no later than 11:00 A.M. (New York City time) on the date five days before the Increase Date; provided that
(i) the Proposed New Commitment of each New Lender shall be in an aggregate amount not less than $20,000,000; and
(ii) each New Lender that submits a Proposed New Commitment shall promptly execute and deliver to the Agent (for its acceptance and recording in the Register) a New Commitment Acceptance, together with a processing and recordation fee payable to the Agent in the amount of $3,000.
(5) If the aggregate amount of Proposed New Commitments and Proposed Increased Commitments (such aggregate amount, the "Total Committed Increase") equals or exceeds $25,000,000, then, subject to the conditions set forth in Section 2.01(c)(1):
(i) effective on and as of the Increase Date, the aggregate amount of the Commitments shall be increased by the Total Committed Increase and shall be allocated among the New Lenders and the Lenders as provided in clause (6) below; and
(ii) on the Increase Date, if any Advances are then outstanding, the Borrower shall borrow Advances from all or certain of the Lenders and/or prepay (subject to Section 8.04(b)) Advances of all or certain of the Lenders such that, after giving effect thereto, the Advances (including, without limitation, the Types and Interest Periods thereof) shall be held by the Lenders (including for such purposes New Lenders) ratably in accordance with their respective Commitments. If the Total Committed Increase is less than $25,000,000, then the aggregate amount of the Commitments shall not be changed pursuant to this Agreement andSection 2.01(c).
(6) The Total Committed Increase shall be allocated among New Lenders having Proposed New Commitments and Lenders having Proposed Increased Commitments as follows:
(i) If the Total Committed Increase shall be at least $25,000,000 and less than or equal to the Proposed Aggregate Commitment Increase, as appropriate, the other Transaction Documents. Subject then subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions subclause (iii) of this Section 2.32.01(c)(6) and clause (7) below (x) the initial Commitment of each New Lender shall be such New Lender's Proposed New Commitment and (y) the Commitment of each Lender shall be increased by such Lender's Proposed Increased Commitment.
(ii) If the Total Committed Increase shall be greater than the Proposed Aggregate Commitment Increase, then the Proposed Aggregate Commitment Increase shall be allocated:
Appears in 1 contract
Sources: Facility a (364 Day) Credit Agreement (Stanley Works)
Increase in Commitments. (a) Notwithstanding anything Upon notice to the contrary contained Administrative Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed (A) in the case of this Agreement Clause (A), on and provided all after the Tenth Amendment Effective Date, the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the conditions set forth in Section 7.1(c) Borrower Parties for the most recent Test Period for which financial statements have been satisfied, upon notice (or are required to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, have been) furnished pursuant to Section 6.01 ended on or prior to the earlier date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Maturity Date and Commitments, (the Term Loan Maturity Date“General Incremental Availability”), request on up plus (B) additional amounts to three occasions an increase the extent that in the Total case of this clause (B) only the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate Commitments (any calculated as if such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Additional Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with Commitments were fully drawn on the Incremental Term Loan, each an "Incremental Loan"applicable test date), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased not exceed, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the Borrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so that long as the interest rate margin all-in respect of such loan is equal yield did not require a change to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers margins pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection clause (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutionsvi). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than thirty (30) days’ (or such shorter period as may be acceptable to Agent) notice to Agent, as long as (a) Notwithstanding anything to the contrary contained requested increase is in this Agreement and provided all of the conditions set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 20,000,000 and is offered on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amountsame terms as existing Commitments, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to total increases under this Section 2.3 do not exceed $120,000,000 and no more than three (3) increases are made and (c) any other fees or expenses required to be paid by Borrowers in connection with such increase shall set forth be mutually agreed. Agent shall promptly notify Lenders of the requested amount increase and, subject to subsection within ten (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (1510) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanthereafter, unless it so agrees. Each each Lender shall notify Agent within if and to what extent such time period whether or not it agrees Lender commits to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than increase its current Applicable Commitment Percentage of such Incremental LoanCommitment. Any Lender not responding within such time period shall be deemed to have declined an increase. If ▇▇▇▇▇▇▇ fail to increase commit to the full requested increase, Eligible Assignees may issue additional Commitments and become Lenders hereunder. Agent may allocate, in its commitmentdiscretion, the increased Commitments among committing Lenders and, if necessary, Eligible Assignees. At Total Commitments shall be increased by the requested amount (or such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided (i) the conditions set forth in Section 6.2 are satisfied at such time; and (ii) to the extent Collateral includes any Real Estate, flood insurance diligence and documentation have been completed as required by all Flood Laws or otherwise in a manner satisfactory to all Lenders. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments. On the effective date of an increase, the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders, and settled by Agent as necessary, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation adjusted shares of such increaseCommitments.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.”
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Inari Medical, Inc.)
Increase in Commitments. (a) Notwithstanding anything The Borrowers may from time to time, on any Business Day after the Effective Date and prior to the contrary contained in this Agreement and provided all Termination Date so long as no Default or Event of Default exists, increase the aggregate amount of the conditions Revolving Credit Commitments by the Company delivering a Commitment Amount Increase Request at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) identifying an additional Lender (or additional Revolving Credit Commitments for existing Lender(s)) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment(s)); provided, however, that (i) the aggregate amount of the Revolving Credit Commitments shall not at any time exceed $600,000,000, and (ii) any increase of the aggregate amount of the Revolving Credit Commitments shall be in an amount not less than $25,000,000. The effective date of any Commitment Amount Increase shall be agreed upon by the Company, on behalf of the Borrowers, and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, or the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 7.1(c14.12) have been satisfied, upon notice of the outstanding Loans and L/C Obligations to Agent (which shall promptly notify the Lenders providing the Commitment Amount Increase so that, after giving effect to such assignments, each Lender (including the Lenders providing the Commitment ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) will hold Loans and L/C Obligations equal to its Percentage of all outstanding Loans and L/C Obligations. It shall be a condition to such effectiveness that (i) either no Eurocurrency Loans be outstanding on the Eligible Financial Institutions), date of such effectiveness or the Borrowers may, prior to pay any applicable breakage cost under Section 3.6 incurred by any Lender resulting from the earlier repayment of its Loans and (ii) the Borrowers shall not have terminated any portion of the Revolving Credit Maturity Date and Commitments pursuant to Section 3.7 hereof. The Borrowers agree to pay any reasonable expenses of the Term Loan Maturity DateAdministrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, request on up no Lender shall have any obligation to three occasions an increase in the Total its Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the no Lender’s Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanwithout its consent thereto, and (in consultation with Agent) shall specify the time period within which each Lender may at its option, unconditionally and each Eligible Financial Institutionwithout cause, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined decline to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseRevolving Credit Commitment.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Increase in Commitments. (a) Notwithstanding anything Subject to the contrary contained in this Agreement terms and provided all of the conditions set forth in Section 7.1(c) herein, after the Amendment No. 4 Effective Date, the Administrative Borrower shall have been satisfiedthe right to request, upon by written notice to Agent the Administrative Agent, increases in the Legacy Commitments and/or the ETMC Commitments (which a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall promptly notify be on the Lenders terms (including the Maturity Date) and the Eligible Financial Institutions), Borrowers may, prior pursuant to the earlier of documentation applicable to the Revolving Credit Maturity Date Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement, (iii) each Revolving Commitment Increase with respect to the Legacy Commitments shall be conditioned on receipt by the Administrative Agent of an amendment to the Relative Rights Agreement, duly executed by each of the applicable parties as required by the terms of the Relative Rights Agreement, to increase both the Cap Amount Floor and the Term Loan Maturity Date, request on up to three occasions an increase Cap Amount (each as defined in the Total Relative Rights Agreement) by an amount not less than the amount of such Revolving Credit Commitment or the Term Loan Amount by Increase and (viv ) any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower5,000,000.
(b) Each notice from Borrowers submitted pursuant to this Section 2.3 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall set forth specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the ETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any other Lender declines to participate in the Revolving Commitment Increase) of the requested amount andincrease in Commitments; provided that (i) each applicable Lender may elect or decline, subject in its sole discretion, to subsection (a) of this Section 2.3have its Commitment increased in connection with any requested Revolving Commitment Increase, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in it being understood that no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loanincrease its Commitment unless it, unless it in its sole discretion, so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable a Lender fails to respond to any Revolving Commitment Percentage Increase Notice within ten (10) Business Days after such Lender’s receipt of such Incremental Loan. Any request, such Lender not responding within such time period shall be deemed to have declined to increase its commitment. At participate in such timeRevolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and commitments of additional lenders are sought in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment shall be subject to the written consent of the Administrative Agent and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld or delayed), in accordance with each case, if such consent would be required pursuant to Section 2.411.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no L/C Issuer or Swing Line Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), Borrowers such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Administrative Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) (x) no Default or Event of Default would exist after giving effect thereto or (y) if the Revolving Commitment Increase is used to finance a Permitted Acquisition or Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may invite Eligible Financial Institutions reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to join this Agreement the Administrative Agent; (4) the representations and warranties contained in Article VI shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent Increase Date; provided that, if the Revolving Commitment Increase is used to finance a Permitted Acquisition or a Permitted Investment, the representations and warranties shall notify be subject to customary “Sungard” limitations; and (5) the Borrowers and each Lender of shall have paid to the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increasein connection therewith.
(c) Incremental Term Loans On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.14, (i) the Administrative Agent shall become Term effect a settlement of all outstanding Loans under this Agreementthe applicable Revolving Credit Facility among the applicable Lenders that will reflect the adjustments to the Commitments under the applicable Revolving Credit Facility of the applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and Incremental (iv) the Revolving Loans Commitment Increase shall become Revolving rank pari passu in right of payment and security with the existing Loans under this Agreement pursuant the applicable Revolving Credit Facility. Each joinder agreement and any amendment to an amendment (an "Incremental any Loan Amendment") to this Agreement and, as appropriate, Document requested by the other Transaction Documents. Subject to Section 13.2, Administrative Agent in connection with the Incremental Loan Amendment establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be reasonably necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.32.14.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything After the Effective Date, the Borrowers shall have the right to increase the contrary contained aggregate Revolving Commitments by obtaining additional Revolving Commitments (“Incremental Revolving Commitments”) and the right to increase the aggregate Term Loan Commitments by obtaining additional Term Loan Commitments (“Incremental Term Commitments”), in this Agreement and each case from either from one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Commitment shall be in a minimum amount of $25,000,000, (B) the aggregate amount of all Incremental Commitments effected pursuant hereto shall not exceed $1,000,000,000; (C) any such new Term Lender shall have assumed all of the rights and obligations of a “Term Lender” hereunder; (D) any such new Revolving Lender shall have assumed all of the rights and obligations of a “Revolving Lender” hereunder; (E) any such Incremental Revolving Commitments shall, subject to Section 2.10(e), be on the same terms as the other Revolving Commitments and any such Incremental Term Commitments shall, subject to Section 2.10(e), be on the same terms as the other Term Loans; and (F) all of the procedures and other conditions set forth described in this Section 7.1(c) 2.10 shall have been satisfied.
(b) The Borrower Representative shall request an Incremental Commitment by delivering a notice (an “Incremental Commitment Request”) to the Administrative Agent, upon notice to Agent (which who shall promptly notify the Lenders and of the Eligible Financial Institutions), Borrowers may, prior substance thereof. The notice by the Administrative Agent to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Lenders describing each Incremental Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) Request shall specify the time period within which each Lender and each Eligible Financial Institution(to be determined by the Borrower Representative in consultation with the Administrative Agent, is requested to respond (which shall but in no event be less than fifteen (15) 15 Business Days from the date of delivery by the Borrower Representative of such notice the applicable Incremental Commitment Request to the Lenders Administrative Agent) within which each Lender is required to inform the Borrower Representative and the Eligible Financial Institutions). No Administrative Agent whether such Lender shall be obligated intends to provide any participate in the applicable Incremental Loan, unless it so agreesCommitment. Each Lender shall notify the Administrative Agent within such the required time period whether or not it agrees to make participate in the requested applicable Incremental Loan, Commitment and, if so, whether by an shall specify the amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental LoanCommitment it desires to be allocated to it. Any Lender not responding within such time period shall be deemed to have declined to increase its commitmentCommitment. At such time, Each determination by a Lender to participate in accordance with Section 2.4, Borrowers an Incremental Commitment shall be made by it in its sole and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. absolute discretion.
(c) The Administrative Agent shall notify Borrowers the Borrower Representative and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request Incremental Commitment Request. The Borrowers may obtain the agreement of additional Eligible Incremental Lenders to become Lenders pursuant to an Incremental Commitment Joinder Agreement, in substantially the form of Exhibit D (each, an “Incremental Commitment Joinder Agreement”). Each such Eligible Incremental Lender shall, as a condition to participating in any Incremental Commitment, be required to deliver all forms, if any, that are required to be delivered by such Eligible Incremental Lender pursuant to Section 9.04 and any other information that the Administrative Agent requires from Lenders as a condition to becoming a party to this Agreement. Any Incremental Commitment shall be allocated among the existing Lenders that agree to participate in such Incremental Commitment and additional Eligible Incremental Lenders who agree to become Lenders pursuant to an Incremental Commitment Joinder Agreement (in each case, up to the amount of each such Person’s agreed participation) as agreed by the Borrower Representative and the Administrative Agent.
(d) Any amendment hereto solely for Incremental Commitments shall be in form and substance satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrower Representative (on behalf of the Borrowers) and the Lender(s) providing an Incremental Commitment. As a condition precedent to any such Incremental Commitment, the Borrowers shall deliver to the Administrative Agent (i) a certificate of each Loan Party (in sufficient copies for each Lender) signed by an authorized officer of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Commitment; and (y) in the case of the Borrowers, certifying that, before and immediately after giving effect to such increase, (A) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct, except that such representations and warranties that relate solely to an earlier date shall be true and correct in all material respects as of such earlier date; (B) no Default or Event of Default shall have occurred and be continuing or would result from any such Incremental Commitment; and (C) at the time of and immediately after giving effect to each such Incremental Commitment, the Borrowers shall be in compliance with the covenant set forth in Section 6.13 (on a Pro Forma Basis for the Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending immediately preceding such Incremental Commitment), which compliance shall be evidenced by the due completion, execution and delivery of a Compliance Certificate and based on the assumption that such Incremental Commitment was fully drawn on the first day of such Test Period, and (ii) such opinions of counsel, evidence of flood insurance, ratification agreements, amendments to the other Loan Documents (which amendments the Administrative Agent is authorized to execute on behalf of all Lenders), and other documents, certificates and information as the Administrative Agent may reasonably request; provided that flood insurance due diligence and flood insurance compliance shall be reasonably satisfactory to the Lenders.
(e) The terms and provisions of the Loans made with respect to any Incremental Commitments shall (i) rank pari passu in right of payment and of security with, and shall have the same guarantees as the existing Loans; (ii) have a maturity date that is not earlier than the Maturity Date of the Term Loan; (iii) have a weighted average life to maturity that is no shorter than the weighted average life to maturity of the Term Loans; (iv) have a rate of interest as set forth in each applicable Incremental Commitment Joinder Agreement; provided that if such interest rate is greater than the interest rate on the Term Loan, the interest rate on the existing Loans shall be increased so as to equal the interest rate applicable to the incremental Loans comprising such Incremental Commitment; and (v) otherwise be treated the same as, and not be entitled to any additional benefits than or impose any more obligations than, the Term Loan or Revolving Loans, as applicable.
(f) Any existing Lender that has a Note and participates in any Incremental Commitment shall, substantially contemporaneously with the delivery of its Note to be replaced to the Borrowers, receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Agent and Borrowers Any new Lender requesting a Note shall determine receive such a Note in an amount equal to the aggregate principal amount of the Incremental Commitments for which its funds pursuant to the terms of this Section.
(g) Within a reasonable time after the effective date (of any Incremental Commitment, the "Increase Effective Date") Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect any Incremental Commitment and shall distribute such revised Commitment Schedule to each of the Lenders and the final allocation Borrowers, whereupon such revised Commitment Schedule shall replace the prior Commitment Schedule and become part of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement. On the Business Day following the effectiveness of any such Incremental Revolving Commitment, and Incremental all outstanding Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment be reallocated among the Lenders (an "Incremental Loan Amendment"including any newly added Lenders) to this Agreement and, as appropriate, in accordance with the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion ’ respective revised Applicable Percentages of the Agent and the Borrower, to effect the provisions of this Section 2.3Revolving Commitments.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything From time to time on and after the Closing Date and prior to the contrary contained in this Agreement and provided all of Tranche 1 Termination Date, the conditions set forth in Section 7.1(c) have been satisfiedBorrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders and the Eligible Financial InstitutionsTranche 1 Lenders), propose to increase the aggregate amount of the Tranche 1 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) having another lender or lenders (each, an “Additional Tranche 1 Lender”) become party to this Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(b) From time to time on and after the Closing Date and prior to the Tranche 2 Termination Date, the Borrowers may, prior upon at least 30 days notice to the earlier Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Revolving Credit Maturity Date Tranche 2 Commitments by an amount which (i) is not less than $25,000,000 with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Term Loan Maturity DateTranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, request is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more Eligible Assignees (each, an “Additional Tranche 2 Lender” and collectively with the Additional Tranche 1 Lenders, the “Additional Lenders”) become party to this Agreement, (y) agreeing with any Tranche 2 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(c) Upon any increase in the amount of the Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to this Section 2.20 (each, an “Additional Commitment”):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (each, an “Increasing Lender”) shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date, undertake an Additional Commitment (or, in the case of an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on up such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to three occasions be) a “Lender” for all purposes hereof.
(ii) The Borrowers shall in the event of an increase in the Total Revolving Credit Commitment or Tranche 1 Commitments, in coordination with the Term Loan Amount by a minimum amount Administrative Agent, repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in each case so that the Tranche 1 Lenders participate in each Borrowing pro rata on the basis of $15,000,000 on each occasion and not their respective Tranche 1 Commitments (after giving effect to exceed $50,000,000 in the aggregate (any such increase in the Term Loan AmountTranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as a result of the actions required to be taken under this Section 2.20, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified paid in full by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan CommitmentBorrowers;
(iii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined forms required by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental LoanSection 2.17(d); and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan Any Additional Commitment shall be generally consistent with subject to the terms prior written approval of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the BorrowerIssuing Lender.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrowers may from time to time, on any Business Day after the Effective Date and prior to the contrary contained in this Agreement and provided all Termination Date so long as no Event of Default exists, increase the aggregate amount of the conditions Revolving Credit Commitments by the Company delivering a Commitment Amount Increase Request at least five Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) identifying an additional Lender (or additional Revolving Credit Commitments for existing Lender(s)) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment(s)); provided, however, that (i) the aggregate amount of the Revolving Credit Commitments shall not at any time exceed $550,000,000, and (ii) any increase of the aggregate amount of the Revolving Credit Commitments shall be in an amount not less than $25,000,000. The effective date of any Commitment Amount Increase shall be agreed upon by the Company, on behalf of the Borrowers, and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, or the existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 7.1(c14.12) have been satisfied, upon notice of the outstanding Loans and L/C Obligations to Agent (which shall promptly notify the Lenders providing the Commitment Amount Increase so that, after giving effect to such assignments, each Lender (including the Lenders providing the Commitment Amount Increase) will hold Loans and L/C Obligations equal to its Percentage of all outstanding Loans and L/C Obligations. It shall be a condition to such effectiveness that (i) either no Eurocurrency Loans be outstanding on the Eligible Financial Institutions), date of such effectiveness or the Borrowers may, prior to pay any applicable breakage cost under Section 3.6 incurred by any Lender resulting from the earlier repayment of its Loans and (ii) the Borrowers shall not have terminated any portion of the Revolving Credit Maturity Date and Commitments pursuant to Section 3.6 hereof. The Borrowers agree to pay any reasonable expenses of the Term Loan Maturity DateAdministrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, request on up no Lender shall have any obligation to three occasions an increase in the Total its Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the no Lender’s Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loanwithout its consent thereto, and (in consultation with Agent) shall specify the time period within which each Lender may at its option, unconditionally and each Eligible Financial Institutionwithout cause, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined decline to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increaseRevolving Credit Commitment.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Increase in Commitments. (a) Notwithstanding anything On the Effective Date, the Borrowers shall have the right to increase the aggregate Term A Loan Commitments and/or Term B Loan Commitments (each such increase, an “Effective Date Incremental Commitment”), to the contrary contained extent that the Joint Lead Arrangers determine in this Agreement their sole and absolute discretion that any of such Commitments has been oversubscribed by the Lenders thereunder; provided that (i) the Borrowers may not increase any such Commitment by more than $100,000,000; and (ii) after giving effect to any Effective Date Incremental Commitments, the aggregate Commitments shall not exceed $1,850,000,000.
(i) After the Effective Date, the Borrowers shall have the right to increase the aggregate Revolving Commitments by obtaining additional Revolving Commitments (“Incremental Revolving Commitments”), either from one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Revolving Commitment shall be in a minimum amount of $25,000,000; (B) the aggregate amount of all Incremental Revolving Commitments effected pursuant hereto shall not exceed $100,000,000; (C) after giving effect to any such Incremental Revolving Commitment, the aggregate Commitments shall not exceed $1,850,000,000; (D) any such new Revolving Lender shall have assumed all of the rights and obligations of a “Revolving Lender” hereunder; (E) any such Incremental Revolving Commitments shall, subject to Section 2.10(f), be on the same terms as the other Revolving Commitments; and (F) all of the procedures and other conditions set forth described in this Section 7.1(c) 2.10 shall have been satisfied.
(ii) After the Effective Date, upon the Borrowers shall have the right to increase the aggregate Term B Loan Commitments by obtaining additional Term B Loan Commitments (“Incremental Term B Commitments”), either from one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Term B Commitment shall be in a minimum amount of $25,000,000; (B) the aggregate amount of all Incremental Term B Commitments effected pursuant hereto shall not exceed $400,000,000; (C) after giving effect to any such Incremental Term B Commitment, the aggregate Commitments shall not exceed $1,850,000,000; (D) any such new Term B Lender shall have assumed all of the rights and obligations of a “Term B Lender” hereunder; (E) any such Incremental Term B Commitments shall, subject to Section 2.10(f), be on the same terms as the other Term B Loan Commitments; and (F) all of the procedures and other conditions described in this Section 2.10 shall have been satisfied.
(c) The Borrower Representative shall request an Incremental Commitment by delivering a notice (an “Incremental Commitment Request”) to Agent (which the Administrative Agent, who shall promptly notify the Lenders and of the Eligible Financial Institutions), Borrowers may, prior substance thereof. The notice by the Administrative Agent to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Lenders describing each Incremental Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) Request shall specify the time period within which each Lender and each Eligible Financial Institution(to be determined by the Borrower Representative in consultation with the Administrative Agent, is requested to respond (which shall but in no event be less than fifteen (15) 15 Business Days from the date of delivery by the Borrower of such notice the applicable Incremental Commitment Request to the Lenders Administrative Agent) within which each Lender is required to inform the Borrower Representative and the Eligible Financial Institutions). No Administrative Agent whether such Lender shall be obligated intends to provide any participate in the applicable Incremental Loan, unless it so agreesCommitment. Each Lender shall notify the Administrative Agent within such the required time period whether or not it agrees to make participate in the requested applicable Incremental Loan, Commitment and, if so, whether by an shall specify the amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental LoanCommitment it desires to be allocated to it. Any Lender not responding within such time period shall be deemed to have declined to increase its commitmentCommitment. At such time, Each determination by a Lender to participate in accordance with Section 2.4, Borrowers an Incremental Commitment shall be made by it in its sole and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. absolute discretion.
(d) The Administrative Agent shall notify Borrowers the Borrower Representative and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunderIncremental Commitment Request. The Borrowers may obtain the agreement of additional Eligible Incremental Lenders to become Lenders pursuant to an Incremental Commitment Joinder Agreement, in substantially the form of Exhibit D (each, an “Incremental Commitment Joinder Agreement”). Each such Eligible Incremental Lender shall, as a condition to participating in any Incremental Commitment, be required to deliver all forms, if any, that are required to be delivered by such Eligible Incremental Lender pursuant to Section 9.04 and any other information that the Administrative Agent requires from Lenders as a condition to becoming a party to this Agreement. Any Incremental Commitment shall be allocated among the existing Lenders that agree to participate in such Incremental Commitment and additional Eligible Incremental Lenders who agree to become Lenders pursuant to an Incremental Commitment Joinder Agreement (in each case, up to the amount of each such Person’s agreed participation) as agreed by the Borrower Representative and the Administrative Agent.
(e) Any amendment hereto solely for Incremental Commitments shall be in form and substance satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrower Representative (on behalf of the Borrowers) and the Lender(s) being added or increasing their Commitments. As a condition precedent to any such increase, the Borrowers shall determine deliver to the Administrative Agent a certificate of each Loan Party (in sufficient copies for each Lender) signed by an authorized officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase; and (ii) in the case of the Borrowers, certifying that, before and immediately after giving effect to such increase, (A) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct, except that such representations and warranties that relate solely to an earlier date shall be true and correct in all material respects as of such earlier date; (B) no Default or Event of Default shall have occurred and be continuing or would result from any such Incremental Commitment; and (C) at the time of and immediately after giving effect to each such Incremental Commitment (1) the Borrowers shall be in compliance with the covenants set forth in Section 6.13 (on a Pro Forma Basis for the Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending immediately preceding such Incremental Commitment), which compliance shall be evidenced by the due completion, execution and delivery of a Compliance Certificate and based on the assumption that such Incremental Commitment was fully drawn on the first day of such Test Period; and (2) the LTV Requirement shall be satisfied (provided that if (x) after giving effect to any Incremental Term B Commitment, the aggregate Term B Loan Commitments exceed $750,000,000 and (y) the effective date of such Incremental Term B Commitment would be more than 36 months after the date on which the Borrowers have last delivered an appraisal of the Loan Parties’ equipment, buildings and real property that constitute Collateral to the Collateral Agent, then, as an additional condition to the effectiveness of such Incremental Term B Commitment, the Borrowers shall provide re-appraisals of the Loan Parties’ equipment, buildings and real property that constitute Collateral from an appraiser selected and engaged by the Administrative Agent and prepared on a basis reasonably satisfactory to the Administrative Agent, to the extent necessary to establish compliance with the LTV Requirement).
(f) The terms and provisions of the "Increase Loans made with respect to any Effective Date"Date Incremental Commitment or any Incremental Commitments shall (i) rank pari passu in right of payment and of security with, and shall have the same guarantees as the existing Loans of the applicable Class; (ii) shall have a maturity date that is not earlier than the same Maturity Date as the existing Loans of the applicable Class; (iii) have a weighted average life to maturity that is no shorter than the weighted average life to maturity of the existing Loans of the applicable Class; (iv) in the case of Incremental Commitments, have a rate of interest as set forth in each applicable Incremental Commitment Joinder Agreement; provided that, with respect to any Class of Loans (other than Term B-2 Loans), if the interest rate is greater than the interest rate on the existing Loans of such Class, the interest rate on the existing Loans of such Class shall be increased so as to equal the interest rate applicable to the incremental Loans of such Class comprising such Incremental Loan Borrowing; and (v) otherwise be treated the same as, and not be entitled to any additional benefits than or impose any more obligations than, the existing Loans.
(g) Any existing Lender that has a Note and participates in any Incremental Commitment shall, substantially contemporaneously with the delivery of its Note to be replaced to the Borrowers, receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Any new Lender requesting a Note shall receive such a Note in an amount equal to the aggregate principal amount of the Incremental Commitments for which its funds pursuant to the terms of this Section.
(h) Within a reasonable time after the effective date of any Incremental Commitment, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect any Incremental Commitment and shall distribute such revised Commitment Schedule to each of the Lenders and the final allocation Borrowers, whereupon such revised Commitment Schedule shall replace the prior Commitment Schedule and become part of this Agreement. On the Business Day following any such increase, all outstanding ABR Advances shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Applicable Percentages. Eurodollar Advances shall not be reallocated among the Lenders prior to the expiration of the applicable Interest Period in effect at the time of any such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything Borrower may from time to the contrary contained time (but no more often than once in this Agreement and provided all of the conditions set forth in Section 7.1(cevery 12 months) have been satisfied, upon notice to Agent (which shall promptly notify the Lenders and the Eligible Financial Institutions), Borrowers may, prior to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount combined Commitments up to an aggregate of $100,000,000 upon Requisite Notice to Administrative Agent. Such request shall include a certificate signed by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
Responsible Officer stating that (i) the final maturity representations and warranties contained in SECTION 5 are true and correct on and as of the date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
such certificate, and (ii) the Revolving Credit Maturity Date no Default or Event of Default exists. Administrative Agent shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect promptly notify each Lender of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agreesrequest. Each Lender shall shall, within 15 Business days of such notice, notify Administrative Agent within such time period by Requisite Notice whether or not (x) it agrees to make the requested Incremental Loan, and, if so, whether increase its Commitment by an amount less than or equal to, greater thanto its Pro Rata Share of such requested increase, or less than (y) it does not agree to any increase in its current Applicable Commitment Percentage of such Incremental LoanCommitment. Any Lender not responding within such the above time period shall be deemed to have declined elected not to increase its commitmentCommitment. At Administrative Agent shall, after receiving the notifications from all of Lenders or the expiration of such timeperiod, whichever is earlier, notify Borrower and Lenders of the results thereof.
(b) If any Lender declines, or is deemed to have declined, to participate in any such increase to the full extent of its Pro Rata Share thereof (a "DECLINING LENDER"), Borrower may request, through Administrative Agent, that one or more other Lenders, in accordance with Section 2.4their sole discretion, Borrowers and Agent provide Commitment(s) equal to such shortfall, If any shortfall remains after all existing Lenders have declined or been deemed to have declined, Borrower may invite then request, through Administrative Agent, that one or more Eligible Financial Institutions Assignees, in their sole discretion, provide Commitment(s) equal to join this Agreement as Lenders hereunder for the portion remaining shortfall; PROVIDED, HOWEVER, that the Commitment of any Eligible Assignee shall not be less than any existing Lender's Commitment before giving effect to any increase in the Incremental Loan not taken by Commitments contemplated hereby. No existing LendersLender's Commitment may be reduced without its consent to facilitate the prior proviso. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and Borrowers Borrower shall thereafter determine the final, revised Commitment allocations and determine an effective date therefor (the "INCREASE EFFECTIVE DATE"). Administrative Agent shall promptly notify Lenders of such revised Commitment allocations and the Increase Effective Date") and . This section shall supercede any provisions in SECTION 10.02 to the final allocation of such increasecontrary.
(c) Incremental Term Loans On or prior to the Increase Effective Date, Borrower shall become Term Loans under deliver to Administrative Agent, in form and substance satisfactory to Administrative Agent (with sufficient copies for each Lender): (i) corporate resolutions and incumbency certificates of Borrower and any Guarantor dated as of the Increase Effective Date approving such increase; (ii) new or amended Notes, if requested by any new or affected Lender, evidencing such new or revised Commitments; (iii) with respect to any Eligible Assignees becoming Lenders, one or more Assignments and Acceptances. Administrative Agent shall distribute an amended SCHEDULE 2.01 (which shall thereafter be incorporated into this Agreement), to reflect any new or increased Commitments and Incremental Revolving each Lender's Pro Rata Share thereof. In order to make all Lender's interests in any outstanding Loans shall become Revolving Loans under this Agreement pursuant ratable in accordance with any revised Pro Rata Shares after giving effect to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, any increase in the reasonable opinion of Commitments, Borrower shall pay or prepay, if necessary, on the Agent Increase Effective Date, all outstanding Loans and the Borrowerpay, to effect the provisions of this Section 2.3.extent applicable, any amounts due under SECTION
Appears in 1 contract
Sources: Credit Agreement (K2 Inc)
Increase in Commitments. (a) Notwithstanding anything to the contrary contained in this Agreement and provided all Provided that no Default or Event of the conditions set forth in Section 7.1(c) have been satisfiedDefault shall then exist, upon notice to to, and with the consent of, the Administrative Agent (which not to be unreasonably withheld), the Borrower may from time to time increase the Aggregate Commitment Amount by (i) requesting that one or more Lenders increase its or their respective Commitments or (ii) inviting one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments hereunder, provided that, in either case, the Borrower shall promptly notify the Lenders not exercise its rights under this Section 2.04 on more than three separate occasions and the Eligible Financial Institutions), Borrowers may, minimum amount by which the Aggregate Commitment Amount shall be increased shall not be less than $75,000,000 (unless the excess of the Maximum Commitment Amount over the Aggregate Commitment Amount in effect immediately prior to any such increase in Commitments is less than $75,000,000, in which case the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, Borrower may request on up to three occasions an increase in the Total Revolving Credit amount of such excess), and further provided that the Aggregate Commitment Amount after giving effect to any such increase shall not exceed the Maximum Commitment Amount. For the avoidance of doubt, it is agreed that the Administrative Agent may withhold its consent to the Borrower’s exercise of the foregoing right as to any particular existing Lender or additional Lender based on the amount of the requested increase in such existing Lender’s or additional Lender’s Commitment or the Term Loan Amount by a minimum amount Administrative Agent’s assessment of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
(i) the final maturity date of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date;
(ii) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any Incremental Term Loan, for any Incremental Loan shall be determined by the Borrowers and the Lenders under such Incremental Loan provided that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin for the Term Loan or the Revolving Loans, as applicable, then the Applicable Margin for Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin in respect credit worthiness of such loan is equal to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, existing Lender or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borroweradditional Lender.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms If the Borrower has requested that all of the Incremental LoanLenders increase their respective Commitments pro rata, and the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond to such request (which shall in no event be less than fifteen (15) ten Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial InstitutionsLenders). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify the Administrative Agent within such the specified time period whether or not it such Lender agrees to make the requested Incremental Loan, increase its respective Commitment and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loanrequested increase in the Aggregate Commitment Amount (based on the Aggregate Commitment Amount then in effect). Any Lender not responding within such specified time period shall be deemed to have declined to increase its commitmentrespective Commitment. At such timeAnything herein contained to the contrary notwithstanding, no Lender shall have any obligation whatsoever to increase its respective Commitment hereunder and the Borrower shall have no obligation to request a pro rata increase in the Commitments of all Lenders or to offer to increase the Commitment of any particular Lender. The consent of the Lenders shall not be required in order for any Lender to increase its Commitment or for one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments pursuant to this Section 2.04.
(b) If the Aggregate Commitment Amount is increased in accordance with this Section 2.42.04, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Administrative Agent and Borrowers the Borrower shall determine the effective date of such increase (the "Increase “Additional/Increased Commitment Effective Date") ”). The Administrative Agent and the Borrower shall promptly notify the Lenders of the final allocation of such increase.
increase and the Additional/Increased Commitment Effective Date. Each existing Lender that increases its Commitment and each additional Lender, if any, and the Borrower shall execute and deliver to the Administrative Agent (cwhich the Administrative Agent shall also execute to acknowledge its acceptance thereof) Incremental Term Loans a certificate substantially in the form of Exhibit B hereto (an “Additional/Increased Commitment Certificate”). Upon receipt by the Administrative Agent of Additional/Increased Commitment Certificates from existing Lenders or additional Lenders, if any, in an amount sufficient to effectuate the increase requested by the Borrower: (1) the Aggregate Commitment Amount shall become Term Loans under be increased, (2) the Administrative Agent shall amend and distribute to the Borrower and the Lenders a revised Schedule 2.01 adding or amending, as applicable, the Commitment(s) of any Lender executing the Additional/Increased Commitment Certificate and the increased Aggregate Commitment Amount (which shall be deemed incorporated into, and made a part of, this Agreement), and Incremental Revolving Loans (3) each additional Lender shall become Revolving Loans under this Agreement pursuant be deemed to an amendment (an "Incremental Loan Amendment") to this Agreement and, be a party in all respects as appropriate, of the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments Additional/Increased Commitment Effective Date to this Agreement and the other Transaction Loan Documents as may be necessary to which the Lenders are party and (4) upon the Additional/Increased Commitment Effective Date, any increasing or appropriateadditional Lender party to the Additional/Increased Commitment Certificate shall purchase from each of the (other) Lenders party to the Agreement immediately prior to the Additional/Increased Commitment Effective Date a pro rata portion of all outstanding Loans (and participation interests in Letters of Credit) of each such (other) Lender such that each Lender (including any additional Lender, if any) shall hold its ratable share of all outstanding Loans (and participation interests in Letters of Credit) after giving effect to its increased or additional Commitment and the resulting increase in the reasonable opinion Aggregate Commitment Amount, provided that the Borrower shall pay any amounts due under Section 2.16 to the extent that any such purchase gives rise to the costs indemnified thereby, and any other amounts due under Section 9.03.
(c) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Agent Additional/Increased Commitment Effective Date (in sufficient copies for each Lender) signed by an officer of the Borrower (i) certifying and attaching the Borrowerresolutions adopted by the Borrower approving or consenting to such increase, (ii) including a certificate of the type described in Section 5.01(c) demonstrating pro forma compliance with Section 6.09 after giving effect to such increase and (iii) certifying that, before and after giving effect to such increase, the provisions representations and warranties contained in Article III are true and correct on and as of the Additional/Increased Commitment Effective Date and no Default or Event of Default exists. The Borrower shall execute and deliver replacement notes if requested in accordance with Section 2.10(e) reflecting such Lender’s Commitment, which notes shall be dated as of the date of this Agreement.
(d) This Section 2.3shall supersede any provision in Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Notwithstanding anything The Borrower may request (in writing) Incremental Commitments in an aggregate amount not to exceed, in the aggregate, $750,000,000 (minus the aggregate principal amount of all Indebtedness issued pursuant to Section 8.2(p) on or prior to the contrary contained in this Agreement and provided date of such request, but not to be reduced by the aggregate principal amount of any such Incremental Term Loans, or Indebtedness issued pursuant to Section 8.2(p), the proceeds of which are applied to the refinancing of all or any portion of the conditions Tranche B Term Loans), in increments of (x) no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time with respect to Incremental Term Loans and (y) no less than $5,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $5,000,000) at any one time with respect to Incremental Revolving Loans, from one or more Incremental Lenders (approved by the Administrative Agent if such Incremental Lender is not already a Revolving Lender and is to be a Revolving Lender after the effective date of the applicable Incremental Commitment Agreement) willing to provide such Incremental Commitments. Requests for such Incremental Commitments may be, at the Borrower’s option, for Incremental Revolving Loans (at any time prior to the later of the (i) Revolving Termination Date and (ii) the latest Extended Revolving Termination Date, if any) and/or Incremental Term Loans. In the event the Borrower shall request Incremental Term Loans, such request shall set forth (i) the amount of the Incremental Term Loans being requested, (ii) the date on which such Incremental Term Loans are requested to be made, (iii) any requested differences between the Incremental Term Loans and the existing Tranche B-2 Term Loans (which shall not be effective until set forth in Section 7.1(c) have been satisfied, upon notice to Agent (which shall promptly notify an executed Incremental Commitment Agreement executed by the Lenders Group Members and the Eligible Financial Institutionseach applicable Incremental Lender), Borrowers mayprovided, prior that in any event (A) the Weighted Average Life to Maturity of all Incremental Term Loans shall be no shorter than the earlier Weighted Average Life to Maturity of the Revolving Credit Maturity Date and Tranche B-2 Term Loans at the Term Loan Maturity Date, request on up to three occasions an increase in time of the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount borrowing of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided that:
and (iB) the final maturity date Maturity Date of any Incremental Term Loan Loans shall be no earlier shorter than the final maturity of the Tranche B-2 Term Loan Maturity Date;
Loans, and (iiiv) the Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan Commitment;
(iii) the interest rate margins and, subject to clause (i) above, amortization with respect to any whether such Incremental Term Loan, for any Incremental Loan shall be determined by Loans are to have the Borrowers and the Lenders under such Incremental Loan provided that if same yield (taking into account the interest rate margin and after giving effect to all upfront fees or similar fees on original issue discount (“OID”) as to the Tranche B-1 Term Loans or whether such Incremental Term Loans are to have a different yield than the Tranche B-1 Term Loans (“Other Term Loans”); provided, that, if the yield in respect of any Incremental Other Term Loan exceeds the yield for the Tranche B-1 Term Loans the Applicable Margin for the Tranche B-1 Term Loan or the Revolving Loans, as and, if applicable, then the Applicable Margin for Tranche B-2 Term Loan or the Revolving Loans, as applicable, shall be increased so that the interest rate margin yield in respect of such loan Other Term Loans (giving effect to any upfront or similar fees or OID issued in connection with such Other Term Loans) is equal no higher than the yield for the Tranche B-1 Term Loans. All Incremental Term Loans (including Other Term Loans) shall otherwise be made on substantially identical terms as the Tranche B-2 Term Loans, except as set forth in any applicable Incremental Commitment Agreement, and, in the case of Other Term Loans, with respect to the interest rate margin for the Incremental Loan; and
(iv) except as otherwise provided in this Section 2.3, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions)thereto. No Agent or Lender shall be obligated to provide deliver or fund any Incremental Loan, unless it so agreesCommitment. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent The Borrower may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of borrow under the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender Commitments only five times during the term of the Lenders’ and Eligible Financial Institutions' responses to each request made hereunder. Agent and Borrowers shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment may, without the consent of Lenders, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.3.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. (a) Notwithstanding anything The Borrower may by written notice to the contrary contained Administrative Agent elect to request (x) prior to the Revolving Termination Date, an increase to the existing Revolving Commitments and/or (y) the establishment of one or more new term loan Commitments in this Agreement addition to the Tranche B-1 Term Commitments established on the Restatement Effective Date (each, an “Incremental Term Loan Commitment”) by an amount not in excess of $750,000,000 in the aggregate (for both of clauses (x) and (y)) and not less than $100,000,000 individually. Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which Borrower proposes that the increased or new Commitments shall be effective, which shall be a date not fewer than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Assignee to whom Borrower proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment.
(b) The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:
(i) each of the conditions set forth in Section 7.1(c5.2 shall be satisfied;
(ii) no Default shall have been satisfied, upon notice occurred and be continuing or would result from the borrowings to Agent be made on the Increase Effective Date;
(which shall promptly notify iii) after giving pro forma effect to the Lenders borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the Eligible Financial Institutionsconsummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c), Borrowers may, prior the Borrower shall be in compliance with each of the covenants set forth in Section 7.16;
(iv) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of Revolving Loans pursuant to Section 2.24(d); and
(v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(c) The terms and provisions of Loans made pursuant to the earlier of the Revolving Credit Maturity Date and the Term Loan Maturity Date, request on up to three occasions an increase in the Total Revolving Credit Commitment or the Term Loan Amount by a minimum amount of $15,000,000 on each occasion and not to exceed $50,000,000 in the aggregate (any such increase in the Term Loan Amount, an "Incremental Term Loan" and any such increase in the Revolving Credit Commitment an "Incremental Revolving Loan Commitment" and such loan an "Incremental Revolving Loan" and together with the Incremental Term Loan, each an "Incremental Loan"), provided thatnew Commitments shall be as follows:
(i) the final maturity date terms and provisions of any Loans made pursuant to Incremental Term Loan Commitments (“Incremental Term Loans”) shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Tranche B-1 Term Loans (it being understood that Incremental Term Loans may be no earlier than the part of an existing tranche of Term Loan Maturity DateLoans);
(ii) all terms and provisions (including maturity date) of Revolving Loans made pursuant to new Commitments shall be identical to the existing Revolving Credit Maturity Date shall not be modified by the increase in the Revolving Credit Commitment with the Incremental Revolving Loan CommitmentLoans;
(iii) the interest rate margins and, subject weighted average life to clause (i) above, amortization with respect to any maturity of all new term loans under Incremental Term Loan, Loan Commitments shall be no shorter than the weighted average life to maturity of the existing Tranche B-1 Term Loans;
(iv) the maturity date of Incremental Term Loans shall not be earlier than the Tranche B-1 Term Loan Maturity Date; and
(v) the Applicable Margins for any the new term loans under Incremental Term Loan Commitments shall be determined by the Borrowers Borrower and the Lenders under such Incremental Loan provided applicable new Lenders; provided, however, that if the interest rate margin in respect of any Incremental Loan exceeds the Applicable Margin Margins for the new term loans under Incremental Term Loan or Commitments shall not be greater than the Revolving Loanshighest Applicable Margins that may, as applicableunder any circumstances, then be payable with respect to Tranche B-1 Term Loans plus 50 basis points (and the Applicable Margin for Margins applicable to the Tranche B-1 Term Loan or the Revolving Loans, as applicable, Loans shall be increased so that the interest rate margin in respect of such loan is equal to the interest rate margin for extent necessary to achieve the Incremental Loan; and
foregoing). The increased or new Commitments shall be effected by a joinder agreement (ivthe “Increase Joinder”) except as otherwise provided in this Section 2.3executed by Borrower, the terms and conditions applicable to any Incremental Loan shall be generally consistent with the terms of the Term Loan, or Revolving Loan, as applicable, or as otherwise reasonably satisfactory to the Administrative Agent and the Borrower.
(b) Each notice from Borrowers pursuant to this Section 2.3 shall set forth the requested amount and, subject to subsection (a) of this Section 2.3, proposed terms of the Incremental Loan, and (in consultation with Agent) shall specify the time period within which each Lender and each Eligible Financial Institution, is requested to respond (which shall in no event be less than fifteen (15) Business Days from the date of delivery of such notice to the Lenders and the Eligible Financial Institutions). No Lender shall be obligated to provide any Incremental Loan, unless it so agrees. Each Lender shall notify Agent within such time period whether or not it agrees to make the requested Incremental Loan, and, if so, whether by an amount equal to, greater than, or less than its current Applicable Commitment Percentage of such Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined to increase its commitment. At such time, in accordance with Section 2.4, Borrowers and Agent may invite Eligible Financial Institutions to join this Agreement as Lenders hereunder for the portion of the Incremental Loan not taken by existing Lenders. Agent shall notify Borrowers and each Lender of the Lenders’ making such increased or new Commitment, in form and Eligible Financial Institutions' responses substance satisfactory to each request made hereunderof them. Agent and Borrowers shall determine the effective date (the "The Increase Effective Date") and the final allocation of such increase.
(c) Incremental Term Loans shall become Term Loans under this Agreement, and Incremental Revolving Loans shall become Revolving Loans under this Agreement pursuant to an amendment (an "Incremental Loan Amendment") to this Agreement and, as appropriate, the other Transaction Documents. Subject to Section 13.2, the Incremental Loan Amendment Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Transaction Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.32.24.
(d) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to such increased Revolving Commitments.
(e) On any Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Borrower in an amount equal to its new Commitment.
(f) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 10 hereof and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such class of Term Loans or any such new Commitments.
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Sources: Credit Agreement (Davita Inc)