Increase in the Aggregate Commitments. (a) The Borrowers may at any time, by written notice to the Administrative Agent, request that the Administrative Agent increase the Maximum Revolver Amount (a “Revolver Increase”) by (i) adding one or more new lenders to the revolving credit facility under this Agreement (each a “New Lender”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing as of the date of such request or as of the effective date of such Revolver Increase (the “Increase Date”) or shall occur as a result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable to the Administrative Agent and consented to by the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver Increase shall be for an amount less than $10,000,000. (b) On each Increase Date, (i) each New Lender that has chosen to participate in such Revolver Increase shall, subject to the conditions set forth in Section 2.19(a) hereof, become a Lender party to this Agreement as of such Increase Date and shall have a Commitment in an amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased by the amount of its share of the Revolver Increase as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date: (i) certified copies of resolutions of the governing body of each Borrower approving the Revolver Increase and the corresponding modifications, if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes; (ii) an assumption agreement from each New Lender participating in the Revolver Increase, if any, in form and substance satisfactory to the Administrative Agent (each, an “Assumption Agreement”), duly executed by such New Lender, the Administrative Agent and the Borrowers; (iii) confirmation from each Lender participating in the Revolver Increase of the increase in the amount of its Commitment, in form and substance satisfactory to the Administrative Agent; (iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture; (v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date); (vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and (vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase. (c) On each Increase Date, upon fulfillment of the conditions set forth in this Section 2.19, the Administrative Agent shall (i) effect a settlement of all outstanding Loans among the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (ii) notify the Lenders, any New Lenders participating in the Revolver Increase and the Borrowers, on or before noon (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date.
Appears in 2 contracts
Sources: Credit Agreement (Phillips Van Heusen Corp /De/), Credit Agreement (Phillips Van Heusen Corp /De/)
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime (including, for avoidance of doubt, after any reduction in the Commitments) but in any event not more than twice in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate amount of the Maximum Revolver Amount (Commitments be increased by a “Revolver Increase”) by (i) adding one or more new lenders to the revolving credit facility under this Agreement minimum amount of $25,000,000 and an integral multiple of $1,000,000 in excess thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Agent; provided, however that (i) in no event shall occur the aggregate amount of the Commitments at any time exceed $2,000,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, as a result thereofcondition to such Commitment Increase, the following conditions precedent shall be satisfied: (wA) the CKI Intercreditor Agreement representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, immediately before and immediately after giving effect to such Commitment Increase, as though made on and as of such date (except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been amended so true and correct in all material respects on and as of such earlier date and (y) such representations and warranties that any Loan made hereunder after are qualified by materiality or Material Adverse Effect in the text thereof shall be true and correct in all respects, provided that the date referred to in Section 4.01(e)(ii) shall be deemed to be the date of the most recent audited financial statements referred to in Section 4.01(e)(i) or delivered in accordance with Section 5.01(i)(ii)) and (B) no event has occurred and is continuing, or would result from such Commitment Increase, that constitutes a Default.
(a) The Borrower may, at its sole discretion, invite its existing Lenders and/or, subject to the consent of the Agent (which consent shall not be unreasonably withheld or delayed), additional Eligible Assignees to become Lenders pursuant to an Assumption Agreement. The Agent shall promptly notify the Lenders or such Eligible Assignees identified by the Borrower of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date shall constitute “Working Capital Debt” under and as defined (iii) the date by which the Lenders or such Eligible Assignees wishing to participate in the CKI Intercreditor Agreement and Commitment Increase must respond (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment. Any Lender that fails to respond to a request for a Commitment Increase by the Commitment Date shall be senior deemed to and have priority over all obligations declined such request. The Commitment of each Eligible Assignee that agrees to participate in the Borrowers to requested Commitment Increase shall be in an amount of not less than $10,000,000. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver and Eligible Assignees notify the Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable to the Administrative Agent and consented to by the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver requested Commitment Increase shall be for an amount less than $10,000,000allocated among such Persons in such amounts as are agreed between the Borrower and the Agent.
(b) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.17(b) (each such Revolver Increase shallEligible Assignee, subject to the conditions set forth and any Eligible Assignee that becomes a Lender in accordance with Section 2.19(a2.20(d), an “Assuming Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or any committee of such Board authorizing the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) a customary opinion of counsel for the Borrower dated such date (which may be in-house counsel), if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changescovering customary matters relating thereto;
(ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;Borrower; and
(iii) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.17(c), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telexother electronic means, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, to the extent applicable, before 2:00 P.M. (New York City time) on the applicable Increase Date, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be funded pro rata by the Lenders in accordance with the Commitments. In connection with any Commitment Increase, the Borrower, the Agent, each Assuming Lender and each Increasing Lender may make such amendments to this Agreement as the Agent determines to be reasonably necessary to evidence the Commitment Increase. This Section shall supersede Sections 2.14 and 8.01.
Appears in 2 contracts
Sources: Credit Agreement (Autodesk, Inc.), Credit Agreement (Autodesk, Inc.)
Increase in the Aggregate Commitments. (a) The Borrowers may at any time, by written notice to the Administrative Agent, request that the Administrative Agent increase the Maximum Revolver Amount (a “Revolver Increase”) by (i) adding one or more new lenders to the revolving credit facility under this Agreement (each a “New Lender”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing as of the date of such request or as of the effective date of such Revolver Increase (the “Increase Date”) or shall occur as a result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable to the Administrative Agent and consented to by the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver Increase shall be for an amount less than $10,000,000.
(b) On each Increase Date, (i) each New Lender that has chosen to participate in such Revolver Increase shall, subject to the conditions set forth in Section 2.19(a) hereof, become a Lender party to this Agreement as of such Increase Date and shall have a Commitment in an amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased by the amount of its share of the Revolver Increase as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) certified copies of resolutions of the governing body of each Borrower approving the Revolver Increase and the corresponding modifications, if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes;
(ii) an assumption agreement from each New Lender participating in the Revolver Increase, if any, in form and substance satisfactory to the Administrative Agent (each, an “Assumption Agreement”), duly executed by such New Lender, the Administrative Agent and the Borrowers;
(iii) confirmation from each Lender participating in the Revolver Increase of the increase in the amount of its Commitment, in form and substance satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) On each Increase Date, upon fulfillment of the conditions set forth in this Section 2.19, the Administrative Agent shall (i) effect a settlement of all outstanding Loans among the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (ii) notify the Lenders, any New Lenders participating in the Revolver Increase and the Borrowers, on or before noon (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date.
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime (including, for avoidance of doubt, after any reduction in the Commitments) but in any event not more than once in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate amount of the Maximum Revolver Amount (a “Revolver Increase”) Commitment be increased by (i) adding one an amount of $25,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Agent; provided, however that (i) in no event shall occur the aggregate amount of the Commitments at any time exceed $500,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, as a result thereofcondition to such Commitment Increase, the following conditions precedent shall be satisfied: (wA) the CKI Intercreditor Agreement representations and warranties contained in Section 4.01 are correct on and as of such date, before and after giving effect to such Commitment Increase, as though made on and as of such date (except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under true and correct on and as defined in the CKI Intercreditor Agreement of such earlier date and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party the date referred to this Agreement pursuant to this in Section 2.19 shall satisfy the requirements of Section 9.04(b4.01(e)(ii) hereof and shall be acceptable deemed to be the Administrative Agent and consented date of the most recent audited financial statements referred to by the Borrowers in Section 4.01(e)(i) or delivered in accordance with Section 5.01(i)(ii) and (zB) the other conditions set forth in this Section 2.19 are satisfied. no event has occurred and is continuing, or would result from such Commitment Increase, that constitutes a Default.
(b) The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify the Lenders of any or such request made Eligible Assignees identified by the BorrowersBorrower and approved by the Agent of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders or such Eligible Assignees wishing to participate in the Commitment Increase must respond (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment. Any Lender that fails to respond to a request for Commitment Increase by the Commitment Date shall be deemed to have declined such request. The aggregate amount Commitment of Revolver Increases shall not exceed $100,000,000 and no single such Revolver each Eligible Assignee that agrees to participate in the requested Commitment Increase shall be for in an amount of not less than $10,000,000. If Lenders and Eligible Assignees notify the Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Persons in such amounts as are agreed between the Borrower and the Agent.
(bc) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in such Revolver a requested Commitment Increase shall, subject to the conditions set forth in accordance with Section 2.19(a2.17(b) hereof, (an “Assuming Lender”) shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or any committee of such Board authorizing the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) an opinion of counsel for the Borrower (which may be in-house counsel), if any, in form and substance reasonably acceptable to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changesAgent;
(ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;Borrower; and
(iii) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.17(c), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telextelecopier, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, to the extent applicable, before 2:00 P.M. (New York City time) on the applicable Increase Date, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be funded pro rata by the Lenders in accordance with the Commitments.
Appears in 1 contract
Sources: Credit Agreement (Autodesk Inc)
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime but in any event not more than twice in any calendar year, by written notice to the Administrative Agent, request that (x) an increase to the Administrative Agent aggregate amount of the Revolving Credit Commitments, (y) an increase to the Maximum Revolver Amount aggregate amount of the A-1 Term Loans or the addition of a separate term loan facility thereunder and/or (z) an increase to the aggregate amount of the A-2 Term Loans or the addition of a separate term loan facility thereunder (each an “Revolver Increase”), with all such Increases under clause (z) by to be in an aggregate amount not to exceed $200,000,000 and with all such Increases under clauses (ix) adding one or more new lenders and (y) to be in an aggregate amount not to exceed $250,000,000 and to be effective as of a date that is at least 90 days prior to the revolving credit facility under this Agreement applicable Termination Date (each a the “New LenderIncrease Date”) who wish as specified in the related notice to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver IncreaseAgent; provided, however, that (vi) the requested Increase shall be an amount of $20,000,000 or an integral multiple of $5,000,000 in excess thereof, (ii) in no Default event shall have occurred and be continuing as the aggregate amount of all Increases hereunder after the Restatement Date exceed $450,000,000, (iii) on the date of such any request or as of by the effective date of such Revolver Borrower for an Increase (and on the “Increase Date”) or shall occur as a result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the related Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (xA) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable to the Administrative Agent and consented to by the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver Increase shall be for an amount less than $10,000,000.
(b) On each Increase Date, (i) each New Lender that has chosen to participate in such Revolver Increase shall, subject to the conditions set forth in Section 2.19(a) hereof, become a Lender party to this Agreement as of such Increase Date and shall have a Commitment in an amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased by the amount of its share of the Revolver Increase as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) certified copies of resolutions of the governing body of each Borrower approving the Revolver Increase and the corresponding modifications, if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes;
(ii) an assumption agreement from each New Lender participating in the Revolver Increase, if any, in form and substance satisfactory to the Administrative Agent (each, an “Assumption Agreement”), duly executed by such New Lender, the Administrative Agent and the Borrowers;
(iii) confirmation from each Lender participating in the Revolver Increase of the increase in the amount of its Commitment, in form and substance satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein contained in Section 4.01 shall be correct on and in the other Financing Documents are true as of such date, before and complete in all material respects with the same force and after giving effect to such Increase, as if though made on and as of such date and (orB) no event has occurred and is continuing, to the extent any or would result from such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver constitutes a Default and (iv) no Increase and otherwise assure and give effect with respect to the rights Revolving Credit Commitments shall increase the sublimit under the Letter of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver IncreaseCredit Facility.
(c) On each Increase Date, upon fulfillment of the conditions set forth in this Section 2.19, the Administrative Agent shall (i) effect a settlement of all outstanding Loans among the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (ii) notify the Lenders, any New Lenders participating in the Revolver Increase and the Borrowers, on or before noon (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date.
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime but in any event not more than twice in any calendar year, by written notice to the Administrative Agent, request that an increase to the Administrative Agent increase aggregate amount of the Maximum Revolver Amount Revolving Credit Commitments (a an “Revolver Increase”) by (i) adding one or more new lenders ), with all such Increases to be in an aggregate amount not to exceed $250,000,000 and to be effective as of a date that is at least 90 days prior to the revolving credit facility under this Agreement Termination Date (each a the “New LenderIncrease Date”) who wish as specified in the related notice to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver IncreaseAgent; provided, however, that (vi) no Default the requested Increase shall have occurred be an amount of $20,000,000 or an integral multiple of $5,000,000 in excess thereof and be continuing as of (ii) on the date of any request by the Borrower for an Increase and on the related Increase Date (A) the representations and warranties contained in Section 4.01 shall be true and correct (except to the extent such request representation and warranty is qualified by Material Adverse Effect or other materiality, in which case it shall be true and correct in all respects) on and as of the effective date such date, before and after giving effect to such Increase, as though made on and as of such Revolver Increase date and (the “Increase Date”B) no event has occurred and is continuing, or shall occur as a would result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) from such Revolver Increase, that constitutes a Default and all Loans made hereunder after the (iv) no Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable respect to the Administrative Agent and consented to by Revolving Credit Commitments shall increase the Borrowers and sublimit under the Letter of Credit Facility.
(za) If the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for Borrower requests an Increase, the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify such Lenders or Eligible Assignees as the Lenders Borrower may direct of any such a request made by the BorrowersBorrower for an Increase, which notice shall include (A) the proposed amount of such requested Increase, (B) the proposed Increase Date and (C) the date by which Lenders wishing to participate in the Increase must commit to an increase in the amount of their respective Commitments. Each such Lender that is willing to participate in such requested Increase (each an “Increasing Revolving Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the relevant deadline of the amount by which it is willing to increase its Revolving Credit Commitment. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver requested Increase shall be for an amount less than $10,000,000allocated among the Lenders willing to participate therein and the applicable Assuming Lenders in such amounts as are agreed between the Borrower and the Agent. Any Lender failing to notify the Agent by the relevant deadline shall be deemed to have declined to increase its Revolving Credit Commitment.
(b) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Increase in accordance with Section 2.18(a) (each such Revolver Increase shallEligible Assignee, subject to the conditions set forth in Section 2.19(aan “Assuming Revolving Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Revolving Credit Commitment of each Increasing Lender for such requested Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.18(a) as of such Increase Date); provided, however, that the Administrative Revolving Credit Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and the Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or the Revolver Executive Committee of such Board authorizing the Increase and the corresponding modifications, if any, (to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified extent not authorized by such Borrower of all such changesresolutions previously delivered pursuant hereto);
(ii) an opinion of counsel for the Borrower (which may be in-house counsel);
(iii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New LenderEligible Assignee, the Administrative Agent and the Borrowers;Borrower; and
(iiiiv) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Revolving Credit Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.18(b), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding each Assuming Revolving Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Revolving Lender and each Assuming Revolving Lender on such date. Each Increasing Revolving Lender and each Assuming Revolving Lender shall, before 2:00 P.M. (New York City time) on the Increase Date, make available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of such Assuming Revolving Lender, an amount equal to such Assuming Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase) and, in the case of such Increasing Revolving Lender, an amount equal to the excess of (i) such Increasing Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase) over (ii) such Increasing Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment (without giving effect to the relevant Increase) as a percentage of the aggregate Revolving Credit Commitments (without giving effect to the relevant Increase). After the Agent’s receipt of such funds from each such Increasing Revolving Lender and each such Assuming Revolving Lender, the Agent will promptly thereafter cause to be distributed like funds to the other Lenders for the account of their respective Applicable Lending Offices in an amount to each other Lender such that the aggregate amount of the outstanding Advances owing to each Lender after giving effect to such distribution equals such Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase).
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime (including, for avoidance of doubt, after any reduction in the Commitments) but in any event not more than once in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate NYDOCS02/1172294 25 amount of the Maximum Revolver Amount (a “Revolver Increase”) Commitments be increased by (i) adding one an amount of $25,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Agent; provided, however that (i) in no event shall occur the aggregate amount of the Commitments at any time exceed $1,000,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, as a result thereofcondition to such Commitment Increase, the following conditions precedent shall be satisfied: (wA) the CKI Intercreditor Agreement representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, immediately before and immediately after giving effect to such Commitment Increase, as though made on and as of such date (except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under true and correct in all material respects on and as defined in the CKI Intercreditor Agreement of such earlier date and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender such representations and warranties that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy are qualified by materiality or Material Adverse Effect in the requirements of Section 9.04(b) hereof and text thereof shall be acceptable true and correct in all respects, provided that the date referred to in Section 4.01(e)(ii) shall be deemed to be the Administrative Agent and consented date of the most recent audited financial statements referred to by the Borrowers in Section 4.01(e)(i) or delivered in accordance with Section 5.01(i)(i)) and (zB) the other conditions set forth in this Section 2.19 are satisfied. no event has occurred and is continuing, or would result from such Commitment Increase, that constitutes a Default.
(b) The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify the Lenders of any or such request made Eligible Assignees identified by the BorrowersBorrower and approved by the Agent of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders or such Eligible Assignees wishing to participate in the Commitment Increase must respond (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment. Any Lender that fails to respond to a request for Commitment Increase by the Commitment Date shall be deemed to have declined such request. The aggregate amount Commitment of Revolver Increases shall not exceed $100,000,000 and no single such Revolver each Eligible Assignee that agrees to participate in the requested Commitment Increase shall be for in an amount of not less than $10,000,000. If Lenders and Eligible Assignees notify the Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Persons in such amounts as are agreed between the Borrower and the Agent.
(bc) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.17(b) (each such Revolver Increase shallEligible Assignee, subject to the conditions set forth and any Eligible Assignee that becomes a Lender in accordance with Section 2.19(a2.20(d), an “Assuming Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or any committee of such Board authorizing the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) a customary opinion of counsel for the Borrower dated such date (which may be in-house counsel), if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changescovering customary matters relating thereto;
(ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;Borrower; and NYDOCS02/1172294 26
(iii) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.17(c), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telexother electronic means, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, to the extent applicable, before 2:00 P.M. (New York City time) on the applicable Increase Date, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be funded pro rata by the Lenders in accordance with the Commitments. In connection with any Commitment Increase, the Borrower, the Agent, each Assuming Lender and each Increasing Lender may make such amendments to this Agreement as the Agent determines to be reasonably necessary to evidence the Commitment Increase. This Section shall supersede Sections 2.14 and 8.01.
Appears in 1 contract
Sources: Credit Agreement (Autodesk Inc)
Increase in the Aggregate Commitments. (a) The Borrowers may Company may, at any timetime but in any event not more than once in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase the Maximum Revolver Amount (a “Revolver Increase”) Aggregate Commitments be increased by (i) adding one an amount of at least $10,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple of $5,000,000 in excess thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Administrative Agent; provided, however that (i) in no event shall occur as the Aggregate Commitments at any time exceed $4,000,000,000 and (ii) on the date of any request by the Company for a result thereofCommitment Increase and on the related Increase Date, (wA) no Default has occurred and is continuing and (B) the CKI Intercreditor Agreement representations and warranties contained in Article 4 are true and correct in all material respects on and as of such date as if made on and as of such date (except (i) where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been amended so true and correct in all material respects as of such earlier date and (ii) any representation or warranty that any Loan made hereunder after the Increase Date shall constitute is qualified as to materiality or “Working Capital DebtMaterial Adverse Effect” under and as defined in the CKI Intercreditor Agreement and shall be senior to true and have priority over correct in all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, respects).
(xb) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable to the Administrative Agent and consented to by the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify such Banks as the Lenders Company shall have selected (including any new Bank) of any such a request made by the BorrowersCompany for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which such Banks wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective Commitments (the “Commitment Date”). The Each such existing Bank that is willing to participate in such requested Commitment Increase (each an “Increasing Bank”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment and each Additional Bank shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to provide a Commitment; provided, however, that the Commitment of each such Additional Bank shall be in an amount of at least $10,000,000 or an integral multiple of $1,000,000 in excess thereof. If the Banks notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver the requested Commitment Increase, the requested Commitment Increase shall be for an amount less than $10,000,000allocated among the Banks willing to participate therein in such amounts as are agreed between the Company and the Administrative Agent.
(bc) Promptly following each Commitment Date, the Administrative Agent shall notify the Company as to the amount, if any, by which the Banks (including any Additional Banks that shall have been selected by the Company) are willing to participate in the requested Commitment Increase.
(d) On each Increase Date, (i) each New Lender new Bank that has chosen accepts an offer to participate in such Revolver a requested Commitment Increase shall, subject to the conditions set forth in accordance with Section 2.19(a2.21(b) hereof, as an Additional Bank shall become a Lender Bank party to this Agreement as of such Increase Date and the Commitment of each Increasing Bank for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Bank pursuant to the last sentence of its share of the Revolver Increase Section 2.21(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
: (i) (A) certified copies of resolutions of the governing body Board of each Borrower Directors of the Company or the Executive Committee of such Board of Directors approving the Revolver Commitment Increase and the corresponding modifications, if any, modifications to the Financing Documents required under subclause this Agreement and (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes;
(iiB) an assumption agreement from each New Lender participating in opinion of counsel for the Revolver Increase, if any, in form and substance satisfactory to the Administrative Agent Company (each, an “Assumption Agreement”), duly executed by such New Lender, the Administrative Agent and the Borrowers;
(iiiwhich may be in-house counsel) confirmation from each Lender participating in the Revolver Increase of the increase in the amount of its Commitment, in form and substance reasonably satisfactory to the Administrative Agent;
; (ivii) a an officer’s certificate of PVH the Company certifying that (aA) no Default or Event as of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under has occurred and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, is continuing and (cB) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and contained in the other Financing Documents Article 4 are true and complete correct in all material respects with on and as of the same force and effect Increase Date as if made on and as of such date (or, to the extent any except (i) where such representation or warranty specifically relates representations and warranties expressly relate to an earlier date, in which case such representation or warranty is representations and warranties shall have been true and complete correct in all material respects as of such earlier datedate and (ii) any representation or warranty that is qualified as to materiality or “Material Adverse Effect” shall be true and correct in all respects);
; (viiii) supplements or modifications an assumption agreement from each Additional Bank, if any, in form and substance reasonably satisfactory to the Financing Documents Company and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document Agent, duly executed by such Revolver Increase and otherwise assure and give effect to the rights of Additional Bank, the Administrative Agent and the Lenders Company; and (iv) confirmation from each Increasing Bank of the increase in the Financing Documents; and
(vii) such other documents, instruments amount of its Commitment in a writing reasonably satisfactory to the Company and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.21(d), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (ii) notify the LendersBanks (including, any New Lenders participating in the Revolver Increase without limitation, each Additional Bank) and the BorrowersCompany, on or before noon 1:00 P.M. (New York City time), by telecopier or telexelectronic communication, of the occurrence of the Revolver Commitment Increase to be effected on such Increase DateDate and shall record in the Register the relevant information with respect to each Increasing Bank and each Additional Bank on such date. Each Increasing Bank and each Additional Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Banks in accordance with the Commitments.
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime but in any event not more than twice in any calendar year, by written notice to the Administrative Agent, request that an increase to the Administrative Agent increase aggregate amount of the Maximum Revolver Amount Revolving Credit Commitments (a an “Revolver Increase”) by (i) adding one or more new lenders ), with all such Increases to be in an aggregate amount not to exceed $250,000,000 and to be effective as of a date that is at least 90 days prior to the revolving credit facility under this Agreement Termination Date (each a the “New LenderIncrease Date”) who wish as specified in the related notice to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver IncreaseAgent; provided, however, that (vi) no Default the requested Increase shall have occurred be an amount of $20,000,000 or an integral multiple of $5,000,000 in excess thereof and be continuing as of (ii) on the date of any request by the Borrower for an Increase and on the related Increase Date (A) the representations and warranties contained in Section 4.01 shall be true and correct (except to the extent such request representation and warranty is qualified by Material Adverse Effect or other materiality, in which case it shall be true and correct in all respects) on and as of the effective date such date, before and after giving effect to such Increase, as though made on and as of such Revolver Increase date and (the “Increase Date”B) no event has occurred and is continuing, or shall occur as a would result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) from such Revolver Increase, that constitutes a Default and all Loans made hereunder after the (iv) no Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable respect to the Administrative Agent and consented to by Revolving Credit Commitments shall increase the Borrowers and sublimit under the Letter of Credit Facility.
(za) If the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for Borrower requests an Increase, the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify such Lenders or Eligible Assignees as the Lenders Borrower may direct of any such a request made by the BorrowersBorrower for an Increase, which notice shall include (A) the proposed amount of such requested Increase, (B) the proposed Increase Date and (C) the date by which Lenders wishing to participate in the Increase must commit to an increase in the amount of their respective Commitments. Each such Lender that is willing to participate in such requested Increase (each an “Increasing Revolving Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the relevant deadline of the amount by CHAR1\1986393v3 which it is willing to increase its Revolving Credit Commitment. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver requested Increase shall be for an amount less than $10,000,000allocated among the Lenders willing to participate therein and the applicable Assuming Lenders in such amounts as are agreed between the Borrower and the Agent. Any Lender failing to notify the Agent by the relevant deadline shall be deemed to have declined to increase its Revolving Credit Commitment.
(b) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Increase in accordance with Section 2.18(a) (each such Revolver Increase shallEligible Assignee, subject to the conditions set forth in Section 2.19(aan “Assuming Revolving Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Revolving Credit Commitment of each Increasing Lender for such requested Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.18(a) as of such Increase Date); provided, however, that the Administrative Revolving Credit Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and the Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or the Revolver Executive Committee of such Board authorizing the Increase and the corresponding modifications, if any, (to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified extent not authorized by such Borrower of all such changesresolutions previously delivered pursuant hereto);
(ii) an opinion of counsel for the Borrower (which may be in‑house counsel);
(iii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New LenderEligible Assignee, the Administrative Agent and the Borrowers;Borrower; and
(iiiiv) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Revolving Credit Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.18(b), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding each Assuming Revolving Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Revolving Lender and each Assuming Revolving Lender on such date. Each Increasing Revolving Lender and each Assuming Revolving Lender shall, before 2:00 P.M. (New York City time) on the Increase Date, make available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of such Assuming Revolving Lender, an amount equal to such Assuming Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase) and, in the case of such Increasing Revolving Lender, an amount equal to the excess of (i) such Increasing Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase) over (ii) such Increasing Revolving Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment (without giving effect to the relevant Increase) as a percentage of the aggregate Revolving Credit Commitments (without giving effect to the relevant Increase). After the Agent’s receipt of such funds CHAR1\1986393v3 from each such Increasing Revolving Lender and each such Assuming Revolving Lender, the Agent will promptly thereafter cause to be distributed like funds to the other Lenders for the account of their respective Applicable Lending Offices in an amount to each other Lender such that the aggregate amount of the outstanding Advances owing to each Lender after giving effect to such distribution equals such Lender’s ratable portion of the Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after giving effect to the relevant Increase).
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime (including, for avoidance of doubt, after any reduction in the Commitments) but in any event not more than twice in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate amount of the Maximum Revolver Amount (a “Revolver Increase”) Commitments be increased by (i) adding one an amount of $25,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Agent; provided, however that (i) in no event shall occur the aggregate amount of the Commitments at any time exceed $2,000,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, as a result thereofcondition to such Commitment Increase, the following conditions precedent shall be satisfied: (wA) the CKI Intercreditor Agreement representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, immediately before and immediately after giving effect to such Commitment Increase, as though made on and as of such date (except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under true and correct in all material respects on and as defined in the CKI Intercreditor Agreement of such earlier date and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender such representations and warranties that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy are qualified by materiality or Material Adverse Effect in the requirements of Section 9.04(b) hereof and text thereof shall be acceptable true and correct in all respects, provided that the date referred to in Section 4.01(e)(ii) shall be deemed to be the Administrative Agent and consented date of the most recent audited financial statements referred to by the Borrowers in Section 4.01(e)(i) or delivered in accordance with Section 5.01(i)(ii)) and (zB) the other conditions set forth in this Section 2.19 are satisfied. no event has occurred and is continuing, or would result from such Commitment Increase, that constitutes a Default.
(b) The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify the Lenders of any or such request made Eligible Assignees identified by the BorrowersBorrower and approved by the Agent of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders or such Eligible Assignees wishing to participate in the Commitment Increase must respond (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment. Any Lender that fails to respond to a request for Commitment Increase by the Commitment Date shall be deemed to have declined such request. The aggregate amount Commitment of Revolver Increases shall not exceed $100,000,000 and no single such Revolver each Eligible Assignee that agrees to participate in the requested Commitment Increase shall be for in an amount of not less than $10,000,000. If Lenders and Eligible Assignees notify the Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Persons in such amounts as are agreed between the Borrower and the Agent.
(bc) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.17(b) (each such Revolver Increase shallEligible Assignee, subject to the conditions set forth and any Eligible Assignee that becomes a Lender in accordance with Section 2.19(a2.20(d), an “Assuming Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or any committee of such Board authorizing the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) a customary opinion of counsel for the Borrower dated such date (which may be in-house counsel), if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changescovering customary matters relating thereto;
(ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;Borrower; and
(iii) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.17(c), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telexother electronic means, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, to the extent applicable, before 2:00 P.M. (New York City time) on the applicable Increase Date, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be funded pro rata by the Lenders in accordance with the Commitments. In connection with any Commitment Increase, the Borrower, the Agent, each Assuming Lender and each Increasing Lender may make such amendments to this Agreement as the Agent determines to be reasonably necessary to evidence the Commitment Increase. This Section shall supersede Sections 2.14 and 8.01.
Appears in 1 contract
Sources: Credit Agreement (Autodesk, Inc.)
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower Representative may, at any timetime but in any event not more than once in any calendar year prior to the latest Facility Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase the Maximum Revolver Amount (a “Revolver Increase”) Aggregate Commitment be increased by (i) adding one an amount of $10,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least thirty (30) days prior to the latest scheduled Facility Termination Date (or such later date of such request or as of the effective date of such Revolver Increase Administrative Agent may agree) then in effect (the “Increase Date”) or shall occur as a result thereof, (w) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined specified in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and shall be acceptable related notice to the Administrative Agent Agent; provided, however that (i) in no event shall the aggregate amount of the Commitments at any time exceed $1,600,000,000 and consented to (ii) on the date of any request by the Borrowers Borrower Representative for a Commitment Increase and (z) on the other related Increase Date the applicable conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not exceed $100,000,000 and no single such Revolver Increase Article IV shall be for an amount less than $10,000,000satisfied.
(b) The Borrower Representative may, but shall not be obligated to, offer the increase to (a) its existing Lenders and/or (b) Eligible Assignees. The Administrative
(c) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.19(b) (each such Revolver Increase shallEligible Assignee and each Eligible Assignee that shall become a party hereto in accordance with Section 2.22, subject to the conditions set forth in Section 2.19(aan “Assuming Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.19(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
: (i) (A) certified copies of resolutions of the governing body board of directors of each Borrower of the Loan Parties or the executive committee of such board approving the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) an opinion of counsel for the Borrower Representative (which may be in- house counsel), if any, in form and substance reasonably acceptable to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes;
Administrative Agent and its counsel; (ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Borrower Representative and the Administrative Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;
(iii) confirmation from each Lender participating in the Revolver Increase of the increase in the amount of its Commitment, in form and substance satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing DocumentsRepresentative; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) On each Increase Date, upon fulfillment of the conditions set forth in this Section 2.19, the Administrative Agent shall (i) effect a settlement of all outstanding Loans among the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (ii) notify the Lenders, any New Lenders participating in the Revolver Increase and the Borrowers, on or before noon (New York City time), by telecopier or telex, of the occurrence of the Revolver Increase to be effected on such Increase Date.
Appears in 1 contract
Sources: Credit Agreement (Aon PLC)
Increase in the Aggregate Commitments. (a) a. The Borrowers may Borrower Agent may, at any time, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate amount of the Maximum Revolver Amount Commitments be increased in an aggregate amount during the term of this Agreement of up to $200,000,000 (in a minimum amount of $25,000,000 and in increments of $5,000,000) (an “Revolver Accordion Increase”) by (ito be effective as of the date upon which the conditions set forth in Section 2.3(d) adding one or more new lenders below are fulfilled to the revolving credit facility under this Agreement satisfaction of Agent (each a an “New LenderAccordion Effective Date”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase); provided, however, that (vi) in no event shall more than four Accordion Increases occur during the term of this Agreement; (ii) no Default or Event of Default shall have occurred and be continuing as of the date of such request or as of the effective date of such Revolver Increase (the “Increase applicable Accordion Effective Date”) , or shall occur as a result thereof, ; (wiii) the CKI Intercreditor Agreement shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under representations and as defined warranties of each Obligor in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, Loan Documents (x) such Revolver Increase, that are not qualified by “materiality” shall be true and correct in all Loans made hereunder after the Increase Date, shall not conflict with any limitations material respects on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, Accordion Effective Date and upon giving effect to such Accordion Increase and (y) any New Lender that becomes party to this Agreement pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b) hereof and are qualified by “materiality” shall be acceptable true and correct on and as of such date, except, in each case, to the Administrative Agent extent that such representations and consented warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except if qualified by “materiality”, shall be true and correct) as of such earlier date; and (iv) if a Trigger Period exists on the applicable Accordion Effective Date, the Borrowers and (z) shall be in compliance on a pro forma basis with the other conditions financial covenant set forth in this Section 2.19 are satisfied. The Administrative 10.3; provided that for purposes of such calculation, such calculation shall assume the Commitments in respect of such Accordion Increase have been fully utilized.
b. Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall will promptly inform notify the Lenders of any such a request made by the Borrowers. The aggregate amount of Revolver Increases Borrower Agent for an Accordion Increase, which notice shall not exceed $100,000,000 and no single such Revolver Increase include the date (which date shall be for an amount less than $10,000,000.
(bat least 15 days following the date of such notice) On each Increase Date, (i) each New Lender that has chosen by which Lenders wishing to participate in such Revolver Accordion Increase shallmust commit to an increase in the amount of their respective Commitments (each, subject a “Commitment Date”) and shall provide that such request is made ratably to all the Lenders. Each Lender that is willing to participate in such Accordion Increase (each, an “Increasing Lender”) shall give written notice to Agent on or prior to the conditions applicable Commitment Date of the amount by which it is willing to increase its Commitment, it being understood that no Lender shall be obligated to participate in any Accordion Increase and any failure by a Lender to respond to Agent's notice as set forth in the immediately preceding sentence shall not be deemed to be evidence of such Lender's willingness to participate in any Accordion Increase. If the Lenders notify Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of such Accordion Increase, such Accordion Increase shall be allocated ratably among the Lenders willing to participate therein.
c. Promptly following the applicable Commitment Date, Agent shall notify the Borrower Agent as to the amount, if any, by which the Lenders are willing to participate in the applicable Accordion Increase. If the aggregate amount by which the Lenders are willing to participate in such Accordion Increase on the applicable Commitment Date is less than such Accordion Increase, then the Borrower Agent may extend offers to one or more Eligible Assignees to participate in any portion of such Accordion Increase that has not been committed to by the Lenders as of the applicable Commitment Date; provided, however, that the Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or such lesser amounts as may be necessary to cause the aggregate increase to equal such Accordion Increase).
d. On the applicable Accordion Effective Date, each Eligible Assignee that accepts an offer to participate in the applicable Accordion Increase in accordance with Section 2.19(a2.3(c) hereof, (each such Eligible Assignee being an “Assuming Lender”) shall become a Lender party to this Agreement as of such Increase the applicable Accordion Effective Date and the Commitment of each Increasing Lender for such Accordion Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.3(b)) as of such Increase DateAccordion Effective Date and the Commitment of each Lender as set forth on Schedule 1.1(b) shall be adjusted accordingly; provided, howeverthat on or before the applicable Accordion Effective Date:
(1) the full amount of the Accordion Increase has been committed to by Increasing Lenders or Assuming Lenders;
(2) all amendments to this Agreement deemed reasonably necessary by Agent to accomplish the applicable Accordion Increase shall have been agreed by the parties hereto and any Assuming Lenders;
(3) all necessary approvals shall have been obtained by each of the Increasing Lenders, that the Administrative Assuming Lenders and Agent; and
(4) Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(A) (i) certified copies of resolutions of the governing body of each Borrower Agent approving the Revolver such Accordion Increase and the corresponding modificationsmodifications to this Agreement, (ii) an opinion of counsel for the Borrower Agent (which may be in-house counsel), in form and substance reasonably satisfactory to Agent and (iii) a certificate from a knowledgeable Senior Officer of the Borrower Agent certifying that the conditions set forth in Section 2.3(a) have been satisfied and including, if anyapplicable, a calculation reasonably satisfactory to Agent showing compliance with the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of financial covenant set forth in Section 10.3 as provided in such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changesSection 2.3(a);
(iiB) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower Agent and Agent (each, each an “Assumption Agreement”), duly executed by such New LenderEligible Assignee, the Administrative Agent and the Borrowers;Borrower Agent; and
(iiiC) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and Agent. On the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) On each Increase applicable Accordion Effective Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.3(d), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower Agent, on or before noon 2:00 pm (New York City time), by telecopier facsimile, email or telexother electronic communication, of the occurrence of such Accordion Increase and shall record in the Revolver Increase Loan Account the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. The Borrower Agent shall prepay Loans on such Accordion Effective Date to the extent necessary to cause the outstanding Loans to be effected on such Increase Dateratable with the Commitment of each Lender. This Section shall supersede the provisions of Section 15.1 as applicable.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Sanmina-Sci Corp)
Increase in the Aggregate Commitments. (a) The Borrowers may Loan Parties may, at any time, unless such request is to replace the Commitment of a Defaulting Lender, by written notice means of a letter to the Administrative Agent, request that the Administrative Agent increase the Maximum Revolver Amount aggregate Commitments be increased (a “Revolver Commitment Increase”) by (i) adding one or more new lenders to the revolving credit facility under this Agreement (each a “New Lender”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing as of the date of specified in such request or as of the effective date of such Revolver Increase letter (the “Increase Date”) by (i) increasing the Commitment of one or shall occur as a result thereof, more Lenders which have agreed to such increase (wan “Increasing Lender”) the CKI Intercreditor Agreement (it being understood that no Lender shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior obligation to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party to this Agreement increase its Commitment pursuant to this Section 2.19 shall satisfy the requirements of Section 9.04(b3.13) hereof and shall be acceptable to the Administrative Agent and consented and/or (ii) adding one or more Permitted Assignees as a party hereto with a Commitment in an amount agreed to by such Permitted Assignee; provided that (A) in no event shall the Borrowers and (z) the other conditions set forth in this Section 2.19 are satisfied. The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform the Lenders of any such request made by the Borrowers. The aggregate amount of Revolver Increases shall not the aggregate Commitments exceed $100,000,000 1,500,000,000 and no single (B) the Commitment of each such Revolver Increase Permitted Assignee shall be for in an amount less than of $10,000,00010,000,000 or more.
(b) On each Increase Date, (i) each New Lender Permitted Assignee that has chosen accepts an offer to participate in such Revolver a requested Commitment Increase shallin accordance with Section 3.13(a) (each, subject to the conditions set forth in Section 2.19(aan “Assuming Lender”) hereof, shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment be so increased by the such amount of its share of the Revolver Increase as of such Increase Date; providedprovided that:
(i) on such Increase Date, however, that the Administrative following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of TCPL, dated such Increase Date, stating that the representations and warranties contained in Section 2.1 are true and correct in all material respects on the date thereof with the same effect as if such representations and warranties were made on such date (y) received from other than any such representation or warranty expressly stated to be made as of an earlier date, which representation or warranty shall be true and correct in all material respects as of such earlier date), before and after giving effect to the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Commitment Increase, including pursuant to Section 2.15 hereof, as though made on and as of such Increase Date and no event or circumstance has occurred and is continuing which constitutes an Event of Default or a Default;
(zii) received on or before such Increase Date Date, the Agent shall have received the following, each dated such date:
Increase Date, in sufficient copies for each Lender (iincluding each Assuming Lender): (A) confirmation that the resolutions delivered in accordance with Section 7.1(a)(iv) remain in effect, or certified copies of other resolutions of the governing body board of directors of each Borrower approving Loan Party, in either case, which authorize the Revolver Commitment Increase and any corresponding modifications to this Agreement, (B) such other approvals or documents as any Lender through the corresponding modificationsAgent may reasonably request in connection with such Commitment Increase, if any, to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changes;
(iiC) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Agent (each, an “Assumption Agreement”)Loan Parties and the Agent, duly executed by such New LenderPermitted Assignee, the Administrative Agent and the Borrowers;
Loan Parties and (iiiD) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent Loan Parties and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.193.13(b), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersLoan Parties, on or before noon (New York City time)1:00 p.m., by telecopier or telextelecopier, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, before 2:00 p.m. on the Increase Date, make available to the Agent at the Agent’s Applicable Account for Payments, in same day funds, an aggregate amount to be distributed to the other Lenders such that the aggregate amount of the outstanding Loans owing to each Lender after giving effect to such distribution equals such Lender’s ratable portion of the Borrowings then outstanding (calculated based on its Commitment as a percentage of the aggregate Commitments outstanding after giving effect to the relevant Commitment Increase). The Borrower acknowledges that, in order to maintain Loans in accordance with each Lender’s ratable share thereof, a reallocation of the Commitments as a result of a non-pro-rata increase in the aggregate Commitments may require prepayment of all or portions of certain Loans on the date of such increase (and any such prepayment shall be subject to the provisions of Section 10.5).
Appears in 1 contract
Increase in the Aggregate Commitments. (a) The Borrowers may Borrower may, at any timetime (including, for avoidance of doubt, after any reduction in the Commitments) but in any event not more than once in any calendar year prior to the Termination Date, by written notice to the Administrative Agent, request that the Administrative Agent increase aggregate amount of the Maximum Revolver Amount (a “Revolver Increase”) Commitment be increased by (i) adding one an amount of $25,000,000 or more new lenders to the revolving credit facility under this Agreement an integral multiple thereof (each a “New LenderCommitment Increase”) who wish to participate in such Revolver Increase and/or (ii) increasing the Commitments of one or more Lenders party to this Agreement who wish to participate in such Revolver Increase; provided, however, that (v) no Default shall have occurred and be continuing effective as of a date that is at least 90 days prior to the date of such request or as of the effective date of such Revolver Increase Termination Date (the “Increase Date”) or as specified in the related notice to the Agent; provided, however that (i) in no event shall occur the aggregate amount of the Commitments at any time exceed $500,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, as a result thereofcondition to such Commitment Increase, the following conditions precedent shall be satisfied: (wA) the CKI Intercreditor Agreement representations and warranties contained in Section 4.01 are correct on and as of such date, before and after giving effect to such Commitment Increase, as though made on and as of such date (except (x) to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been amended so that any Loan made hereunder after the Increase Date shall constitute “Working Capital Debt” under true and correct on and as defined in the CKI Intercreditor Agreement of such earlier date and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, (x) such Revolver Increase, and all Loans made hereunder after the Increase Date, shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture, (y) any New Lender that becomes party the date referred to this Agreement pursuant to this in Section 2.19 shall satisfy the requirements of Section 9.04(b4.01(e)(ii) hereof and shall be acceptable deemed to be the Administrative Agent and consented date of the most recent audited financial statements referred to by the Borrowers in Section 4.01(e) (i) or delivered in accordance with Section 5.01(ii)(iii)) and (zB) the other conditions set forth in this Section 2.19 are satisfied. no event has occurred and is continuing, or would result from such Commitment Increase, that constitutes a Default.
(b) The Administrative Agent shall use commercially reasonable efforts to arrange for the syndication of any Revolver Increase. The Administrative Agent shall promptly inform notify the Lenders of any or such request made Eligible Assignees identified by the BorrowersBorrower and approved by the Agent of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders or such Eligible Assignees wishing to participate in the Commitment Increase must respond (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment. Any Lender that fails to respond to a request for Commitment Increase by the Commitment Date shall be deemed to have declined such request. The aggregate amount Commitment of Revolver Increases shall not exceed $100,000,000 and no single such Revolver each Eligible Assignee that agrees to participate in the requested Commitment Increase shall be for in an amount of not less than $10,000,000. If Lenders and Eligible Assignees notify the Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Persons in such amounts as are agreed between the Borrower and the Agent.
(bc) On each Increase Date, (i) each New Lender Eligible Assignee that has chosen accepts an offer to participate in such Revolver a requested Commitment Increase shall, subject to the conditions set forth in accordance with Section 2.19(a2.17(b) hereof, (an “Assuming Lender”) shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment Increase shall have a Commitment in an be so increased by such amount equal to its share of the Revolver Increase and (ii) each Lender that has chosen to increase its Commitment pursuant to this Section 2.19 will have its Commitment increased or by the amount allocated to such Lender pursuant to the last sentence of its share of the Revolver Increase Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have (y) received from the Borrowers all out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender in connection with such Revolver Increase, including pursuant to Section 2.15 hereof, and (z) received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the governing body Board of each Directors of the Borrower approving or any committee of such Board authorizing the Revolver Commitment Increase and the corresponding modificationsmodifications to this Agreement and (B) an opinion of counsel for the Borrower (which may be in-house counsel), if any, in form and substance reasonably acceptable to the Financing Documents required under subclause (vi) below, together with a certificate of each Borrower certifying that there have been no changes to the constitutive documents of such Borrower since the Effective Date, or if there have been changes, copies certified by such Borrower of all such changesAgent;
(ii) an assumption agreement from each New Lender participating in the Revolver IncreaseAssuming Lender, if any, in form and substance satisfactory to the Administrative Borrower and the Agent (each, each an “Assumption Agreement”), duly executed by such New Assuming Lender, the Administrative Agent and the Borrowers;Borrower; and
(iii) confirmation from each Increasing Lender participating in the Revolver Increase of the increase in the amount of its Commitment, Commitment in form and substance a writing satisfactory to the Administrative Agent;
(iv) a certificate of PVH certifying that (a) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such Revolver Increase, (b) all Loans made hereunder after the Increase Date shall constitute “Working Capital Debt” under and as defined in the CKI Intercreditor Agreement and shall be senior to and have priority over all obligations of the Borrowers to ▇▇▇▇▇▇ ▇▇▇▇▇ for Design Service Payments, and (c) such Revolver Increase and all Loans made hereunder after the Increase Date shall not conflict with any limitations on the incurrence of Indebtedness or the granting of the Security Interests contained in either the Senior Notes Indentures or the Debentures Indenture;
(v) a certificate of PVH certifying that the representations and warranties made by each Borrower herein and in the other Financing Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (or, to the extent any such representation or warranty specifically relates to an earlier date, such representation or warranty is true and complete in all material respects as of such earlier date);
(vi) supplements or modifications to the Financing Documents and such additional Financing Documents, including, without limitation, amendments to the Mortgages, endorsements to the existing ALTA title policies for each Mortgaged Property, as well as any new Notes to New Lenders and replacement Notes to Lenders that agree to participate in such Revolver Increase, that the Administrative Agent reasonably deems necessary in order to document such Revolver Increase and otherwise assure and give effect to the rights of the Administrative Agent and the Lenders in the Financing Documents; and
(vii) such other documents, instruments and information as the Administrative Agent or its counsel shall reasonably deem necessary in connection with the Revolver Increase.
(c) Agent. On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.192.17(c), the Administrative Agent shall (i) effect a settlement of all outstanding Loans among notify the Lenders that will reflect the adjustments to the Commitments of the Lenders as a result of the Revolver Increase and (iiincluding, without limitation, each Assuming Lender) notify the Lenders, any New Lenders participating in the Revolver Increase and the BorrowersBorrower, on or before noon 1:00 P.M. (New York City time), by telecopier or telextelecopier, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, to the extent applicable, before 2:00 P.M. (New York City time) on the applicable Increase Date, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be funded pro rata by the Lenders in accordance with the Commitments.
Appears in 1 contract
Sources: Credit Agreement (Autodesk Inc)