Additional Commitments. The Borrower may from time to time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).
Appears in 1 contract
Sources: Credit Agreement (Brookfield Residential Properties Inc.)
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after request: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) other financial institutions first approved by Agent, in its reasonable discretion, to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the Effective Datetotal Commitments and the Maximum Revolver Amount may be increased, in increments of not less than Twenty-Five Million Dollars ($25,000,000), by notice up to no more than One Hundred Million Dollars ($100,000,000) in the Administrative Agent, request that, on the terms aggregate (for a maximum of total Commitments of Three Hundred Million Dollars ($300,000,000)). Each such increase and new Commitment shall be subject to the conditions contained in this Agreementprior satisfaction of the following conditions, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that as determined by Agent:
(i) Borrower shall have requested the increased or new Commitment in writing to Agent not less than thirty (30) days prior to the effective date of the proposed new or increased Commitment;
(ii) Agent and Borrower shall have agreed upon an arrangement fee in respect of any such proposed new or increased Commitment and shall have entered into a fee letter evidencing the same (which fee letter, upon its execution and deliver by each party thereto, shall be deemed a “Loan Document” for all purposes);
(iii) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(iv) there shall exist no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) both at the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date time of the existing Commitments (request for the increased or any Other Credit Extensions constituting Commitments), (v) new Commitment and at the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield time at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).Commitment becomes effective;
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Additional Commitments. The (a) Borrower may from time may, as provided in this Section 11.21, increase the amount of the Total Commitment up to time after an aggregate principal amount of Two Hundred Twenty-Five Million Dollars ($225,000,000). Such increase shall be in an amount of at least Five Million ($5,000,000) or integral multiples thereof. After the Effective Dateeffective date of such increase, by notice to the Administrative Agent, request that, Banks' obligations under this Agreement shall be based on the terms and subject to the conditions contained in this AgreementTotal Commitment, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitmentsincrease.
(b) In order to increase the amount of the Total Commitment, Borrower shall deliver to the Administrative Agent an Additional Commitment and Acceptance in substantially the form of Exhibit L executed by the Borrower and a financial institution that wishes to become a Bank hereunder. Such financial institution must satisfy the requirements applicable to an Eligible Assignee and must confirm to and agree with each other party hereto as follows: (i) such financial institution confirms that it has received a copy of the Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Additional Commitment and Acceptance; (ii) such financial institution will, independently and without reliance upon the Administrative Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; (iii) such financial institution confirms that it is an Eligible Assignee; (iv) such financial institution appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (v) such financial institution agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Bank.
(c) Within five days of its receipt of an Additional Commitment and Acceptance satisfying the requirements of subsection (a) of this Section 11.21 executed by Borrower and a financial institution representing that it is an Eligible Assignee, together with a processing and recordation fee of $3,500 with respect thereto, Administrative Agent shall, if such Additional Commitment and Acceptance has been completed and is in substantially the form of Exhibit L hereto, (1) accept such Additional Commitment and Acceptance and (2) record the information contained therein in the Register. Administrative Agent shall maintain a copy of each Additional Commitment and Acceptance delivered to and accepted by it. The additional Commitment shall become effective on the first date after the acceptance thereof by the Administrative Agent on which all Eurodollar Loans under are simultaneously converted to Loans of another type or Interest Period pursuant to Section 2.8 of the Credit Agreement, provided that if no Eurodollar Loans are outstanding on the date of acceptance by Administrative Agent, the effective date shall be the date of acceptance by Administrative Agent.
(d) The Administrative Agent shall promptly thereafter notify each of the other Banks of the increase in the Total Commitments; provided that the failure of the Administrative Agent to so notify the other Banks shall not affect in any manner the validity of the increase in the amount of the Total Commitment.
(e) On the effective date of each additional Commitment, the financial institution becoming a Bank on such additional Commitments date shall have pay to the same Guaranties Administrative Agent an amount equal to such Bank's Percentage of all Eurodollar Loans being converted pursuant to Section 2.8 and Collateral (if any)of all Reference Rate Loans outstanding on the effective date, and the Administrative Agent shall rank pari passu with promptly distribute to each of the other Banks its share of such payment to reduce each of such Bank's pro rata share of the Loans to be made pursuant to Section 2.1A(i)its Percentage, (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Bank.
Appears in 1 contract
Additional Commitments. The Borrower may from time (a) So long as no Termination Event shall have occurred and then be continuing, the Parent may, once during the term of this Agreement, increase the then existing Commitments to time after up to $250,000,000 in the Effective Dateaggregate, by subject to the satisfaction of each of the following conditions precedent:
(i) the Parent shall have delivered written notice of such increase to the Administrative Agent, request thatwhich notice shall specify:
(A) the identity of each Bank or other Eligible Assignee (each, an “Additional Bank”) to whom the Parent proposes each increase in the Commitments be allocated (such increase, an “Additional Commitment”) and the amounts of such allocations;
(B) the date (the “Additional Commitment Date”) on which the terms Parent proposes that the Additional Commitments be effective, which date shall not be more than thirty (30) days, and subject not less than twenty (20) days, after the date on which such notice is delivered to the conditions contained in this Agreement, Qualified Administrative Agent; and
(C) the aggregate amount of the Additional Lenders provide up Commitments;
(ii) not later than three (3) Business Days prior to the Additional Facilities Amount in Commitment Date, the aggregate in additional Commitments; provided that (i) no Default or Event of Default Parent, the Sellers and the Additional Banks shall have occurred executed and be continuing delivered a Joinder Agreement to the Administrative Agent;
(iii) on or would occur after giving effect to such additional Commitmentsbefore the Additional Commitment Date, (ii) the Loans under such additional Commitments Parent shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made any payments required pursuant to Section 2.1A(i), 13.2 in connection with the Additional Commitments;
(iiiiv) on and as of the Additional Commitment Date the representations and warranties made by each Facility Party in Section 5 each of the Facility Documents to which such Facility Party is a party shall be true and correct in all material respects prior (except for those representations and warranties that are conditioned by materiality, which shall be true and correct in all respects) to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which shall have been true and correct in all respects) on and as of such earlier date;
(v) no Termination Event shall exist on the Additional Commitment Date before or after giving effect to such additional the Additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, ; and
(vi) on or before the Additional Commitment Date, the Parent shall have delivered or cause to be delivered all corporate legal opinions and other documents reasonably requested by the Administrative Agent in connection with any such additional Commitments transaction.
(b) Upon receipt of the notice referred to in Section 2.7(a)(i), the Administrative Agent shall be made available no more than four times prior promptly notify each Bank of the Additional Commitment Date, the Additional Commitments, and such Bank’s interest in the Purchased Receivables, subject to the assignments contemplated by Section 2.7(d).
(c) For the avoidance of doubt, no Bank shall have any obligation to provide an Additional Commitment, and each Bank may elect or decline to provide an Additional Commitment Termination in its sole discretion.
(d) Effective as of the Additional Commitment Date, (viii) each such additional Bank having an existing Commitment shall be in a minimum aggregate assign to each Additional Bank, and each Additional Bank shall purchase from each Bank having an existing Commitment, at the principal amount of $10,000,000thereof, (viii) such interest in the minimum commitment of any Qualified Purchased Receivables on such Additional Lender Commitment Date as shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”)necessary in order that, then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to all such increasesassignments and purchases, the Yield Differential shall equal 50 basis points; provided that, interests in the Purchased Receivables will be held by Banks having existing Commitments and by Additional Banks ratably in accordance with their Commitments after giving effect to the extent any portion addition of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable such Additional Commitments to the additional Commitments, the “LIBO Rate floor” applicable to the Loans ; (ii) each Additional Commitment shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floorCommitment” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications respect to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(iiand all matters relating hereto; and (iii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified each Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement Bank shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant “Bank” with respect to this Section 2.1A(ii) Agreement and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)all matters relating hereto.
Appears in 1 contract
Sources: Master Accounts Receivable Purchase Agreement (World Fuel Services Corp)
Additional Commitments. The Borrower Co-Borrowers may from time to time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) the Loans loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Revolving Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Revolving Loans to be made thereunder, to the extent not consistent with the Commitments and the Revolving Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, Agent and (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii2.1 A(iii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii2.1 A(iii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate LIBOR floor” and/or the Applicable Margin applicable to the Revolving Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate LIBOR floor” being applicable to the additional Commitments, the “LIBO Rate LIBOR floor” applicable to the Revolving Loans shall be increased (or, in the event there is no “LIBO Rate LIBOR floor” applicable to the Revolving Loans at such time, a 50 CREDIT AGREEMENT “LIBO Rate LIBOR floor” shall be added) to an amount not to exceed the “LIBO Rate LIBOR floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Revolving Loans. Nothing contained in this Section 2.1A(ii2.1 A(iii) or otherwise in this Agreement is intended to commit any Lender or the Administrative any Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Revolving Loans and/or participations incurred in connection with Letters of Credit and Swing Line Loans so as to cause the amount of such Revolving Loans and/or participations in connection with Letters of Credit and Swing Line Loans held by each Revolving Loan Lender to conform to the respective percentages of the applicable Commitments of the Revolving Loan Lenders as so adjusted and (b) the Borrower Co-Borrowers shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii2.1 A(iii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, the BorrowerBorrowers, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs Borrowers incur new Commitments under this Section 2.1A(ii2.1A(iii), regardless of whether such Commitments are Other Credit Extensions, the Borrower Borrowers shall, after such time, (x) incur and repay Revolving Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower Borrowers may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii2.1 A(iii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Rate Loans, Canadian Prime Rate Loans, CDOR Rate Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii2.1 A(iii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit and Swing Line Loans between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).
Appears in 1 contract
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after request: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) other financial institutions mutually approved by Agent, the Effective DateSwingline Lender and the Borrower, to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the total Commitments and the Maximum Revolver Amount may be increased, in increments of not less than Twenty-Five Million Dollars ($25,000,000), by notice up to no more than Two Hundred Million Dollars ($200,000,000) in the Administrative Agent, request that, on the terms aggregate (for a maximum of total Commitments of Six Hundred Million Dollars ($600,000,000)). Each such increase and new Commitment shall be subject to the conditions contained in this Agreementprior satisfaction of the following conditions, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that as determined by Agent:
(i) Borrower shall have requested the increased or new Commitment in writing to Agent not less than thirty (30) days prior to the effective date of the proposed new or increased Commitment;
(ii) Agent and Borrower shall have agreed upon an arrangement fee in respect of any such proposed new or increased Commitment and shall have entered into a fee letter evidencing the same (which fee letter, upon its execution and deliver by each party thereto, shall be deemed a “Loan Document” for all purposes);
(iii) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(iv) there shall exist no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) both at the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date time of the existing Commitments (request for the increased or any Other Credit Extensions constituting Commitments), (v) new Commitment and at the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield time at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).Commitment becomes effective;
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Additional Commitments. (a) The Borrower may from time to time after the Effective Date, by written notice to the Administrative Agent, request that, on the terms and subject Agent elect to the conditions contained in this Agreement, Qualified seek commitments (“Additional Lenders provide up Commitments”) to the Additional Facilities Amount in increase the aggregate principal amount of any existing Class of Loans or to establish one or more new Classes of Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in additional Commitmentsan aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), ;
(iii) the representations and warranties in Section 5 no existing Lender shall be true and correct in all material respects prior required to and after giving effect to such additional provide any Additional Commitments, ;
(iv) each of the conditions set forth in Section 4.02 shall be satisfied;
(v) the final maturity date of any additional Commitments Additional Loans shall be no earlier than, and no scheduled mandatory commitment reduction than the Latest Maturity Date;
(vi) the Additional Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Loans outstanding prior to such proposed incurrence of Additional Loans (the “Outstanding Loans”);
(vii) the interest margins for the Additional Loans shall be required prior todetermined by the Borrower and the Lenders of such Additional Loans; provided that in the event that the All-in-Yield for any Additional Loans is greater than the All-in-Yield for Outstanding Loans by more than 50 basis points, then the Applicable Rate for the Outstanding Loans shall be increased to the extent necessary so that the All-in-Yield for such Additional Loans is not more than 50 basis points higher than the All-in-Yield for Outstanding Loans, except that if the Adjusted LIBO Rate floor on the Additional Loans is higher than 75 basis points (and the Alternate Base Rate floor is higher than 175 basis points), the maturity date applicable interest rate floor on the Outstanding Loans may be increased up to the applicable interest rate floor on the Additional Loans and such increase in interest rate floor shall be counted as increase in the Applicable Rate for purposes of the existing Commitments foregoing;
(viii) no Additional Loans shall be guaranteed by any Person that is not a Guarantor or secured by any Other Credit Extensions constituting Commitmentsasset that is not Collateral;
(ix) any Additional Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Outstanding Loans or, if agreed to by the lenders of Additional Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis), ;
(vx) the terms (other than Additional Credit Extension Amendment with respect to pricing any Class of Additional Loans may provide for (A) (x) additional or maturitymore restrictive covenants that benefit only the Lenders of such Class that apply only after the Latest Maturity Date (before giving effect to the Additional Loans of such Class) of or (y) additional or more restrictive covenants that benefit all Lenders or (B) (x) prepayment premium as set forth in Section 2.11(h) for a period ending concurrently with the period applicable to the Initial Loans or (y) prepayment premium that benefits all Lenders equally; and
(xi) any additional Additional Loans and Additional Commitments shall be pursuant to documentation applicable to the Outstanding Loans and the Loans on terms to be made thereunderdetermined; provided that, to the extent such terms are not consistent with the Commitments and Outstanding Loans (except to the Loans extended under this Agreement pursuant to Section 2.1A(iextent permitted by clause (v), (vi), (vii), (ix) or (x) above), they shall be reasonably satisfactory to the Administrative Agent.
(b) Each such notice shall specify (x) the date (each, (vian “Additional Commitments Effective Date”) such additional on which the Borrower proposes that the Additional Commitments shall be made available no more than four times prior effective, which shall be a date reasonably acceptable to the Commitment Termination Date, Administrative Agent and (viiy) the identity of the proposed Additional Lenders (each such additional Commitment of which shall be in an Eligible Assignee (for this purpose treating a minimum aggregate principal amount Lender of $10,000,000, (viiiAdditional Commitments as if it were an assignee)) whom the minimum commitment of any Qualified Borrower proposes would provide the Additional Lender shall be $2,500,000 Commitments and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable Additional Commitment to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held provided by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably requestsuch Person. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be As a condition precedent to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new any Additional Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior shall deliver to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitteda certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that the conditions in Section 4.02 are satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, without each Person with an Additional Commitment shall make an Additional Loan to the consent Borrower in a principal amount equal to such Person’s Additional Commitment.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of any “Additional Credit Extension Amendment” but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to amend effect the Loan Documents provisions of this Section 2.22.
(e) This Section 2.22 shall supersede any provisions in Section 2.18 or Section 9.02 to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)contrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (NorthStar Asset Management Group Inc.)
Additional Commitments. The Borrower may from time (a) Subject to the terms and conditions hereof, at any time after the Effective Second Amendment Date and prior to the Maturity Date, provided that no Event of Default has occurred and is continuing and that the Borrower is in pro forma compliance with the financial covenants in Section 5.1(12) (assuming the full incurrence and application of the new Indebtedness in question), the Borrower may request that the Lenders or any other Persons provide additional Commitments (each, an “Additional Commitment”) which shall serve to increase the Credit, such that further Loans become available thereunder upon identical terms and conditions.
(b) Any Additional Commitment shall be documented pursuant to an Additional Commitment Agreement executed by notice to the Borrower, the Person providing the Additional Commitment (the “Additional Lender”) and the Administrative Agent, request that, on the terms and subject to . Upon satisfaction of the conditions contained in this Agreementprecedent set out therein, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default the Additional Commitment in question shall have occurred and be continuing or would occur after giving effect to such additional Commitmentsbecome effective, (ii) the Loans under Agent shall promptly notify each Lender as to such additional Commitments shall have the same Guaranties and Collateral (if any)agreement, and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 Schedule 2.1 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans deemed to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, modified accordingly. 23112834.19 (vic) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without this Agreement:
(i) no Additional Commitment shall require the consent of any LenderLender other than the Additional Lender in question, but each Additional Commitment shall require the approval of the Administrative Agent, not to amend be unreasonably withheld;
(ii) no Lender shall have any obligation to participate in any Additional Commitment unless it agrees to do so in its sole discretion;
(iii) no Lender shall have the Loan Documents right to participate in any Additional Commitment or receive prior notice thereof, regardless of the extent necessary to give effect to fact that its share in the aggregate Commitments is reduced thereby;
(iv) the aggregate amount of all Additional Commitments shall not exceed U.S.$25,000,000;
(v) the aggregate amount of all Additional Commitments requested at any increases pursuant to this Section 2.1A(iione time shall not be less than U.S.$10,000,000; and
(vi) the Borrower may pay such up-front, arrangement or other fees as may be agreed by the Administrative Agent and mechanical and conforming changes necessary or advisable any Additional Lender in connection therewith (including amendments to (1) implement with the requirements in the preceding two sentences, (2) ensure pro rata allocations provision by such Additional Lender of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)an Additional Commitment.
Appears in 1 contract
Sources: Credit Agreement (SSR Mining Inc.)
Additional Commitments. The Borrower Company may from time to time after the Effective Datetime, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders and/or other financial institutions not then a party to this Agreement, that are approved by Administrative Agent (such approval not to be unreasonably withheld or delayed), provide up to the Additional Facilities Amount in the an aggregate amount of $125,000,000 in additional Revolving Loan Commitments (each such additional Revolving Loan Commitment, an “Additional Commitment,” and collectively, the “Additional Commitments”); provided that (i) no Event of Default or Potential Event of Default shall have occurred and be continuing or would occur after giving effect to result from such additional Additional Commitments, (ii) the Loans under such additional Additional Commitments shall have the same Guaranties and Collateral (if any)may be added hereunder on no more than three occasions, and on each such occasion, the aggregate amount of Additional Commitments added shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i)in an aggregate minimum amount of $25,000,000 and integral multiples of $1,000,000 in excess of that amount, (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving pro forma effect to such additional CommitmentsAdditional Commitments and any borrowings contemplated to occur substantially concurrently with the addition thereof, Company will be in compliance with all of its covenants under this Agreement (including, without limitation, those set forth in Section 7.6), (iv) the maturity date aggregate amount of any additional Additional Commitments that may be added after April 30, 2007 shall be no earlier than, limited to the lesser of (X) $50,000,000 and no scheduled mandatory commitment reduction shall be required (Y) $125,000,000 minus the aggregate amount of Additional Commitments added prior to, the maturity to such date of the existing Commitments (or any Other Credit Extensions constituting Commitments), and (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000the Commitments, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increasesthe Additional Commitments, will not exceed the Yield Differential shall equal 50 basis points; provided that, to maximum principal amount permitted for the extent any portion “Senior Credit Facility” under clause (1) of Section 4.11 of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the LoansSenior Subordinated Note Indenture. Nothing contained in this Section 2.1A(ii) paragraph or otherwise in this Agreement is intended to commit any Lender or the Administrative any Agent to provide any portion of any such additional Additional Commitments. If and to the extent that any Qualified Additional Lenders and/or other financial institutions agree, in their sole discretion, to provide any such additional Additional Commitments on the terms and conditions set forth hereinherein (such Lenders, in such capacity, “Increasing Lenders”), (ai) at the aggregate amount of the Revolving Loan Commitments shall be increased by the amount of the Additional Commitments so provided, (ii) the Pro Rata Shares of the Lenders shall be proportionally adjusted to reflect the increase in the Revolving Loan as a result of the addition of such time and in such manner as the Administrative Agent shall reasonably determineAdditional Commitments, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments (iii) each Increasing Lender shall purchase and assume from other Lenders outstanding Loans and/or and participations incurred in connection with outstanding Letters of Credit so as to cause the amount of such Loans and/or and participations in connection with Letters of Credit held by each Lender to conform to its Pro Rata Share of such Loans and Letters of Credit (it being agreed Administrative Agent shall have the respective percentages of the applicable Commitments of the right to unilaterally effect such purchases by collecting appropriate amounts from Increasing Lenders as so adjusted and distributing appropriate amounts to other Lenders, in each case in an amount sufficient to achieve such conformity) and (biv) the Borrower Company shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the are consistent with this subsection 2.1A(iii) as Administrative Agent may reasonably request. If any new In connection with the additional Revolving Loan Commitments incurred pursuant to provided for in this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”subsection 2.1A(iii), all such terms conforming amendments shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, made by the Administrative Agent is expressly permittedand Company to this Agreement and the other Loan Documents to reflect such Additional Commitments, without the consent of any LenderLender other than those providing the Additional Commitments, including, without limitation, if applicable, conforming amendments: (i) to amend provide for the Additional Commitments to share ratably in the benefits of this Agreement and the other Loan Documents (including the accrued interest in respect thereof) with the other Loans made under this Agreement, (ii) to Sections 1 and 2 to provide, among other things, for the Additional Commitments to share ratably with the applicable Loans in the application of prepayments, and (iii) to include Lenders of the additional Revolving Loan Commitments in any determination of Lenders, Requisite Lenders and Pro Rata Share. Notwithstanding anything in this Agreement expressed or implied to the extent necessary contrary (including, without limitation in subsection 10.6), nothing herein shall be construed to give effect require consent from Lenders that do not provide Additional Commitments to the incurrence of the Additional Commitments in compliance with this subsection 2.1A(iii), and this subsection 2.1A(iii) shall supersede any increases pursuant provisions in subsection 10.6 to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)contrary.
Appears in 1 contract
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after the Effective Daterequest: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) request other financial institutions first approved by notice to the Administrative Agent, request thatin its sole and absolute discretion, on to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the terms total Commitments and the Maximum Amount may be increased by up to no more than Ninety-Five Million Dollars ($95,000,000) in the aggregate (for a maximum of total Commitments of One Hundred Fifty Million Dollars ($150,000,000)). Each such increase and new Commitment shall be subject to the conditions contained prior satisfaction of the following conditions, as determined by Agent:
(1) Borrower shall have requested the increased or new Commitment in this Agreement, Qualified Additional Lenders provide up writing to Agent not less than thirty (30) days prior to the Additional Facilities Amount in effective date of the aggregate in additional Commitments; provided that proposed new or increased Commitment;
(i2) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(3) there shall exist no Default or Event of Default both at the time of the request for the increase or new Commitment and at the time at which the increase or new Commitment becomes effective;
(4) Agent and the Requisite Lenders shall have occurred and be continuing or would occur after giving effect provided their prior written consent to such additional Commitmentsincrease or new Commitment, which consent shall be a matter of their sole and absolute discretion;
(ii5) the Loans under such additional Commitments Borrower shall have the same Guaranties deliver to Agent all documents (including, without limitation, new Notes and Collateral (if anyLoan Document modifications as Agent may reasonably request), legal opinions, certificates and instruments as Agent may require in its sole and absolute discretion in connection with such increase in the Commitments or new Commitment and shall rank pari passu pay all fees owing hereunder or under the Fee Letter in connection with such increased or new Commitment;
(6) no event, circumstance or condition shall exist which reasonably could be expected to have a Material Adverse Effect;
(7) as of the Loans to be made pursuant to Section 2.1A(i)date of such increase or new Commitment, (iii) the representations and warranties contained in Section 5 the Loan Documents shall be true and correct in all material respects prior to respects, with the same force and after giving effect to as if made on and as of such additional Commitments, date (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, except to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory of changes in facts or circumstances that have been disclosed to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in Lenders and do not constitute a minimum aggregate principal amount Default or Event of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to Default under this Agreement or any other Loan Document Document, and except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date); and
(8) each Acceding Lender shall have delivered to Agent, an Accession Agreement in substantially the Administrative form of Exhibit H hereto (an “Accession Agreement”) with Borrower and Agent and assuming thereunder an increased Commitment or a new Commitment in an amount to be agreed upon by Borrower, such Acceding Lender and Agent, to make Loans pursuant to the terms hereof together with such other documents, instruments and agreements as Agent may reasonably requestrequire, including a completed and executed administrative details reply, administrative questionnaire or similar document in form satisfactory to Agent. If any A new Commitments incurred pursuant Acceding Lender shall become party to this Section 2.1A(ii) are to have terms that are different from Agreement by entering into an Accession Agreement. Upon the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the due execution and delivery of which agreement each Accession Agreement and satisfaction of the foregoing conditions, the Maximum Amount shall thereupon be increased by the amount of such Acceding Lender’s Commitment; provided, that Agent shall have given its prior written consent to such accession, as Agent. No Lender is obligated to increase its Commitment under any circumstances whatsoever, and no Lender’s Commitment may be increased except by its execution and delivery of an Accession Agreement. On the effective date specified in any duly executed and delivered Accession Agreement: (1) the Acceding Lender, to the extent not already a Lender, shall be a condition “Lender” hereunder and a party hereto, entitled to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii)rights and benefits, regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything subject to the contrary in Section 10.5duties, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend a Lender under the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentencesDocuments, (2) ensure pro rata allocations Schedule C hereto shall be deemed to be amended to reflect (a) the name, address, Commitment, Pro Rata Share of Eurodollar Loans such Acceding Lender, (b) the Maximum Amount as increased by such Acceding Lender’s Commitment, and Base Rate Loans between Loans incurred pursuant (c) the changes to this Section 2.1A(iithe other Lenders’ respective Pro Rata Shares and any changes to the other Lenders’ respective Commitments (in the event such Lender is also the Acceding Lender) resulting from such assumption and Loans outstanding immediately prior to any such incurrence increased Maximum Amount, and (3) implement ratable participation Schedule D shall be deemed to be amended to reflect such Acceding Lender’s wire transfer instructions specified in Letters its Accession Agreement. Each Lender’s Pro Rata Share shall be recalculated to reflect the new proportionate share of Credit between the Other Credit Extensions consisting revised total Commitments and increased Maximum Amount. Upon request of any Acceding Lender, Borrower shall issue a Revolving Loan Note to evidence the Principal Amount of such Lender’s Commitment. All new Loans occurring after an increase of the total Commitments and the Commitments outstanding immediately prior to any such incurrence)Maximum Amount shall be funded in accordance with each Lender’s revised Pro Rata Share.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Additional Commitments. The Borrower may (a) So long as no Default or Event of Default then exists or would result therefrom, the Borrower, in consultation with the Administrative Agent, shall have the right at any time and from time to time after on or prior to the Effective Date, by 180th day prior to the original Maturity Date and upon at least 30 days’ prior written notice to the Administrative Agent, to request thaton one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Additional Commitments and, on the terms and subject to the applicable terms and conditions contained in this Agreement and the relevant Additional Commitment Agreement, Qualified Additional Lenders provide up make Revolving Loans pursuant to the Additional Facilities Amount in the aggregate in additional CommitmentsSection 1.01; provided it being understood and agreed, however, that (i) no Default or Event Lender shall be obligated to provide an Additional Commitment as a result of Default any request by the Borrower, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Additional Commitment and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 1.16(b) and (y) such other conditions set forth in Section 1.16(b) shall have occurred and been satisfied, such Lender shall not be continuing obligated to fund any Revolving Loans, or would occur after participate in any Letters of Credit, in excess of the amounts provided for in Sections 1.01 or 2.03, as the case may be, before giving effect to such additional CommitmentsAdditional Commitments provided pursuant to this Section 1.16, (iv) any Lender (or, in the circumstances contemplated by clause (viii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Additional Commitment without the consent of any other Lender (it being understood and agreed that the consent of the Administrative Agent shall be required if any such Additional Commitments are to be provided by a Person which is not already a Lender, which consent shall not be unreasonably withheld or delayed), (v) each provision of Additional Commitments on a given date pursuant to this Section 1.16 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (viii) below, Eligible Transferees who will become Lenders)) of at least $50,000,000, (vi) the aggregate amount of all Additional Commitments permitted to be provided pursuant to this Section 1.16, shall not exceed $250,000,000, (vii) the up-front fees payable to any Lender (including any Eligible Transferee that will become a Lender as contemplated by clause (viii) below) providing an Additional Commitment shall be as set forth in the relevant Additional Commitment Agreement, (viii) the Borrower shall have the right, in addition to requesting the then existing Lenders to provide Additional Commitments pursuant to this Section 1.16, to request Additional Commitments from Persons which would qualify as Eligible Transferees hereunder, provided that any such Additional Commitments provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, and (ix) all actions taken by the Borrower pursuant to this Section 1.16(a) shall be done in consultation with the Administrative Agent.
(b) At the time of any provision of Additional Commitments pursuant to this Section 1.16, (i) the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Additional Commitment (each, an “Additional Lender”) shall execute and deliver to the Administrative Agent an Additional Commitment Agreement substantially in the form of Exhibit M, subject to such modifications in form and substance reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Lender’s Additional Commitment to occur upon delivery of such Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith, the satisfaction of any conditions precedent that may be set forth in such Additional Commitment Agreement and the satisfaction of the other conditions in this Section 1.16(b) to the reasonable satisfaction of the Administrative Agent), (ii) the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans under such additional Commitments shall have of the same Guaranties and Collateral (if any)Lenders, and shall rank pari passu incur additional Revolving Loans from other Lenders, in each case so that the Lenders continue to participate in the Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in such Commitments pursuant to this Section 1.16) and with the Loans Borrower being obligated to be made pursuant pay the respective Lenders the costs of the type referred to in (and in accordance with the provisions of) Section 2.1A(i)1.12 as a result of any such repayment and/or Borrowing, and (iii) the representations and warranties in Section 5 Borrower shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, deliver to the extent not consistent with the Commitments Administrative Agent an opinion, in form and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be substance reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior from counsel to the Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering such matters similar to those set forth in the opinion of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02. The Administrative Agent shall promptly notify each Lender as to the occurrence of each Additional Commitment Termination Date, and (viiw) on each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000date, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Total Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to Commitment under, and for all purposes of, this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans Agreement shall be increased by the aggregate amount of such that after giving effect Additional Commitments, (x) on each such date, Schedule I shall be deemed modified to such increasesreflect the revised Revolving Loan Commitments, (y) upon surrender of any old Revolving Loan Notes by the Yield Differential shall equal 50 basis points; provided thatrespective Additional Lender (or, if lost, a standard lost note indemnity in form and substance reasonably satisfactory to the Borrower), to the extent requested by any portion Additional Lender, a new Revolving Loan Note be issued, at the expense of the Yield Differential is attributable Borrower, to a higher “LIBO Rate floor” being applicable such Additional Lender, to be in conformity with the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased requirements of Section 1.06 (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be addedwith appropriate modifications) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, needed to provide any reflect the revised Commitments of such additional Commitments Lender and (z) on the terms and conditions set forth herein, (a) at each such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed date with respect to provide additional Commitments shall purchase and assume all outstanding Loans and/or participations incurred in connection with Letters of Credit so as and Unpaid Drawings, there shall be an automatic adjustment to cause the amount of participations by the Lenders in such Loans and/or participations in connection with Letters of Credit held by each Lender and Unpaid Drawings to conform to reflect the respective percentages new Percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Lenders.
Appears in 1 contract
Additional Commitments. The Borrower may vii) So long as the Additional Dollar Facility Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the written notice referred to below, BFPH shall have the right at any time and from time to time after the Effective Date, by and upon at least 15 days prior written notice to the Administrative Agent, to request thaton one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Additional Dollar Facility Revolving Loan Commitments and, on the terms and subject to the applicable terms and conditions contained in this AgreementAgreement and consistent with the amount of Additional Dollar Facility Revolving Loan Commitments so provided, Qualified Additional Lenders provide up make Dollar Facility Revolving Loans pursuant to the Additional Facilities Amount in the aggregate in additional Commitments; provided Sections 1.01(c)(i) and 1.01(e)(i), it being understood and agreed, however, that (i) no Default or Event Lender shall be obligated to provide an Additional Dollar Facility Revolving Loan Commitment as a result of Default any request by BFPH, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Additional Dollar Facility Revolving Loan Commitment and executed and delivered to the Administrative Agent an Additional Dollar Facility Revolving Loan Commitment Agreement in respect thereof as provided in Section 1.16(b) and (y) such other conditions set forth in Section 1.16(b) shall have occurred and been satisfied, such Lender shall not be continuing obligated to fund any Dollar Facility Revolving Loans, or would occur after participate in any Dollar Facility Letters of Credit, in excess of the amounts provided for in Section 1.01(c)(i), 1.01(e)(i) and/or 2.03, as the case may be, before giving effect to such additional Commitments, (ii) the Loans under such additional Additional Dollar Facility Revolving Loan Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made provided pursuant to this Section 2.1A(i)1.16, (iii) any Lender (or, in the representations circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Additional Dollar Facility Revolving Loan Commitment without the consent of any other Lender (other than, in the circumstances contemplated by clause (viii) below, the Administrative Agent, Chase and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitmentseach Issuing Lender), (iv) the maturity each provision of Additional Dollar Facility Revolving Loan Commitments on a given date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to this Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment 1.16 shall be in a minimum aggregate principal amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $25,000,000, (v) the aggregate amount of $10,000,000, (viii) the minimum commitment of any Qualified all Additional Lender shall Dollar Facility Revolving Loan Commitments permitted to be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended provided pursuant to this Section 2.1A(ii1.16 shall not exceed $50,000,000, (vi) exceeds by more than 50 basis points the fees payable to any Lender providing an Additional Dollar Facility Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms Commitment shall be as set forth in the relevant Additional Dollar Facility Revolving Loan Commitment Agreement, (vii) if, after BFPH has requested the then existing Lenders (other than Defaulting Lenders) to provide Additional Dollar Facility Revolving Loan Commitments pursuant to this Section 1.16 on the terms to be applicable thereto, BFPH has not received Additional Dollar Facility Revolving Loan Commitments in an aggregate amount equal to that amount of the Additional Dollar Facility Revolving Loan Commitments which BFPH desires to obtain pursuant to such request (as set forth in the notice provided by BFPH to the Administrative Agent as provided above), then BFPH may request Additional Dollar Facility Revolving Loan Commitments from Persons which would qualify as Eligible Transferees hereunder in aggregate amount equal to such deficiency on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, PROVIDED that any such Additional Dollar Facility Revolving Loan Commitments provided by any such Eligible Transferee which is not already a separate assumption agreement among HoldingsLender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, the Borrower, the Qualified (viii) no Person (including any existing Lender and any Eligible Transferee which was not already a Lender) may provide an Additional Lenders providing such additional Dollar Facility Revolving Commitments and Loan Commitment unless approved each of the Administrative Agent, the execution Chase and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii)each Issuing Lender, regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior such approval shall not be required with respect to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Additional Dollar Facility Revolving Loan Documents to the extent necessary to give Commitment assumed by an existing Non-Defaulting Lender which already has a Revolving Loan Commitment (before giving effect to any increases its Additional Dollar Facility Revolving Loan Commitment assumed pursuant to this Section 2.1A(ii1.16) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1ix) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred all actions taken by BFPH pursuant to this Section 2.1A(ii1.16(a) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation shall be done in Letters of Credit between coordination with the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Vertis Inc)
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after the Effective Daterequest: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) other financial institutions first approved by notice to the Administrative Agent, request thatin its reasonable discretion, on to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the terms total Commitments and the Maximum Revolver Amount may be increased by up to no more than One Hundred Twenty-Five Million Dollars ($125,000,000) in the aggregate (for a maximum of total Commitments of Two Hundred Million Dollars ($200,000,000)). Each such increase and new Commitment shall be subject to the conditions contained in this Agreementprior satisfaction of the following conditions, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that as determined by Agent:
(i) Borrower shall have requested the increased or new Commitment in writing to Agent not less than thirty (30) days prior to the effective date of the proposed new or increased Commitment;
(ii) the Agent and Borrower shall have agreed upon an arrangement fee in respect of any such proposed new or increased Commitment and shall have entered into a fee letter evidencing the same (which fee letter, upon its execution and deliver by each party thereto, shall be deemed a “Loan Document” for all purposes);
(iii) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(iv) there shall exist no Default or Event of Default both at the time of the request for the increased or new Commitment and at the time at which the increased or new Commitment becomes effective;
(v) Agent and the Required Lenders shall have occurred and be continuing or would occur after giving effect provided their prior written consent to such additional Commitmentsincrease or new Commitment, which consent shall be a matter of their sole and absolute discretion;
(iivi) the Loans under such additional Commitments Borrower shall have the same Guaranties deliver to Agent all documents (including, without limitation, new Notes and Collateral (if anyLoan Document modifications as Agent may reasonably request), legal opinions, certificates and instruments as Agent may require in its reasonable discretion in connection with such increase in the Commitments or new Commitment and shall rank pari passu pay all fees owing hereunder or under any fee letter in connection with such increased or new Commitment;
(vii) as of the Loans to be made pursuant to Section 2.1A(i)date of such increased or new Commitment, (iii) the representations and warranties contained in Section 5 the Loan Documents shall be true and correct in all material respects prior as of such date with the same force and effect as if made on and as of such date (other than (A) those representations and warranties which are qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects on and as of such date, and (B) in each case, to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects, or true and correct in all respects, as the case may be, on and as of such earlier date);
(viii) both before and after giving effect to any such additional increased or new Commitments, the Borrower (ivor HTGC, if applicable) the maturity date of any additional Commitments shall be no earlier thanin pro forma compliance with each covenant set forth in Sections 7.16 and 7.17; and
(ix) each Acceding Lender shall have delivered to Agent (A) a duly executed Accession Agreement, whereby upon effectiveness thereof such Lender agrees to make Advances pursuant to the terms hereof, and (B) such other documents, instruments and agreements as Agent may require, including a completed and executed administrative details reply, administrative questionnaire or similar document in form satisfactory to Agent. A new Acceding Lender shall become party to this Agreement by entering into an Accession Agreement. Upon the due execution and delivery of each Accession Agreement and satisfaction of the foregoing conditions, the Maximum Revolver Amount shall thereupon be increased by the amount of such Acceding Lender’s Commitment; provided, that Agent (in its capacity as such) shall have given its prior written consent to such accession. No Lender is obligated to increase its Commitment under any circumstances whatsoever, and no scheduled mandatory commitment reduction shall Lender’s Commitment may be required prior to, increased except by its execution and delivery of an Accession Agreement or another amendment to this Agreement executed and delivered by such Lender. On the maturity effective date of the existing Commitments specified in any duly executed and delivered Accession Agreement: (or any Other Credit Extensions constituting Commitments), (v1) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunderAcceding Lender, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i)already a Lender, shall be reasonably satisfactory a “Lender” hereunder and a party hereto, entitled to the Administrative Agentrights and benefits, and subject to the duties, of a Lender under the Loan Documents, and (2) Schedule C-1 hereto shall be deemed to be amended to reflect (a) the name, address, Commitment and Pro Rata Share of such Acceding Lender, (vib) the Maximum Revolver Amount as increased by such additional Acceding Lender’s Commitment, and (c) the changes to the other Lenders’ respective Pro Rata Shares and any changes to the other Lenders’ respective Commitments (in the event such Lender is also the Acceding Lender) resulting from such assumption and such increased Maximum Revolver Amount. On the effective date of any such increased or New Commitment, each (I) Lender’s Pro Rata Share shall be made recalculated to reflect the new proportionate share of the revised total Commitments and increased Maximum Revolver Amount, (II) and each relevant Acceding Lender shall make available no more than four times prior to the Commitment Termination Date, (vii) each Agent such additional Commitment shall be amounts in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein immediately available funds as the “Yield Differential”)Agent determines, then for the “LIBO Rate floor” and/or benefit of the Applicable Margin applicable other Lenders, as being required to the Loans shall be increased such that cause, after giving effect to such increasesincrease and paying such amounts to such other Lenders, the Yield Differential shall equal 50 basis points; provided that, to the extent any each Lender’s portion of the Yield Differential is attributable outstanding Advances of all the Lenders to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at equal its Pro Rata Share of such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loansoutstanding Advances. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion Upon request of any such additional Commitments. If and Acceding Lender, Borrower shall issue a Revolving Loan Note to evidence the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount Principal Amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)’s Commitment.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Additional Commitments. The Borrower may (a) So long as the Additional Commitment Requirements are satisfied at the time of the delivery of the written notice referred to below and on the respective Additional Commitment Date, Furniture Brands shall have the right, at any time and from time to time after within one year following the Effective Date, by and upon at least 15 days prior written notice to the Administrative Agent, to request that, on the terms one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Additional Commitments and subject to the applicable terms and conditions contained in this AgreementAgreement and consistent with the amount of Additional Commitments so provided, Qualified Additional Lenders provide up make Revolving Loans pursuant to the Additional Facilities Amount Sections 1.01(a) and 1.01(c) and purchase participations in the aggregate in additional Commitments; provided Letters of Credit pursuant to Section 2.04, it being understood and agreed, however, that (i) no Default or Event of Default Lender shall be obligated to provide an Additional Commitment, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Additional Commitment and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 1.14(b) and (y) such other conditions set forth in Section 1.14(b) shall have occurred and been satisfied, such Lender shall not be continuing obligated to fund any Revolving Loans, or would occur after participate in any Letters of Credit, in excess of the amounts provided for in Section 1.01(a), 1.01(c) and/or 2.01(c), as the case may be, before giving effect to such additional CommitmentsAdditional Commitments provided pursuant to this Section 1.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Additional Commitment without the consent of any other Lender (other than, in the circumstances contemplated by clause (viii) below, the Administrative Agent and each Issuing Lender), (iv) each provision of Additional Commitments on a given date pursuant to this Section 1.14 shall be in integral multiples (in the aggregate for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $5,000,000, (v) the aggregate amount of all Additional Commitments permitted to be provided pursuant to this Section 1.14 shall not exceed $70,000,000, (vi) the fees payable to any Lender providing an Additional Commitment shall be as set forth in the relevant Additional Commitment Agreement, (vii) if, after Furniture Brands has requested the then existing Lenders (other than Defaulting Lenders) to provide Additional Commitments pursuant to this Section 1.14 on the terms to be applicable thereto, Furniture Brands has not received Additional Commitments in an aggregate amount equal to that amount of the Additional Commitments which Furniture Brands desires to obtain pursuant to such request (as set forth in the notice provided by Furniture Brands to the Administrative Agent as provided above), then Furniture Brands may request Additional Commitments from Persons which would qualify as Eligible Transferees hereunder in aggregate amount equal to such deficiency on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Additional Commitments provided by any such Eligible Transferee which is not already a Lender shall be in integral multiples (for such Eligible Transferee) of at least $1,000,000, (viii) no Person (including any existing Lender and any Eligible Transferee which was not already a Lender) may provide an Additional Commitment unless approved by each of the Administrative Agent and each Issuing Lender, provided that such approval shall not be required with respect to any Additional Commitment assumed by an existing Non-Defaulting Lender, (ix) the interest rate applicable to Revolving Loans made pursuant to such Additional Commitments shall be the same as the interest rate applicable at such time to other Revolving Loans made pursuant to this Agreement and (x) all actions taken by Furniture Brands pursuant to this Section 1.14(a) shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Additional Commitments pursuant to this Section 1.14, (i) Furniture Brands, the Administrative Agent and each such Lender or other Eligible Transferee (each, an "Additional Lender") which agrees to provide an Additional Commitment shall execute and deliver to the Administrative Agent an Additional Commitment Agreement substantially in the form of Exhibit I, subject to such modifications in form and substance satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Lender's Additional Commitment to occur upon delivery of such Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the other conditions in this Section 1.14(b) to the satisfaction of the Administrative Agent), (ii) the Loans under such additional Commitments Additional Commitment Requirements shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i)been satisfied, (iii) Furniture Brands shall, in coordination with the representations Administrative Agent, repay all outstanding Revolving Loans of the Lenders, and warranties incur new Revolving Loans from the Lenders, in Section 5 shall be true and correct each case so that the Lenders participate in all material respects prior to and each Borrowing of Revolving Loans pro rata on the basis of their respective Commitments (after giving effect to any increase in the Total Commitment pursuant to this Section 1.14) and with the Borrowers being jointly and severally obligated to pay the respective Lenders the costs of the type referred to in Section 1.11 in connection with any such additional Commitments, repayment and/or Borrowing and (iv) the maturity date of any additional Commitments Furniture Brands shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, deliver to the extent not consistent with the Commitments Administrative Agent an opinion, in form and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably substance satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior from counsel to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable Furniture Brands satisfactory to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent and dated such date, covering such matters similar to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions those set forth herein, (a) at such time and in such manner as the opinion of counsel delivered to the Administrative Agent shall reasonably determine, on the Qualified Additional Lenders who have in their sole discretion agreed Effective Date pursuant to provide additional Commitments shall purchase Section 5.03 and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document matters as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant The Administrative Agent shall promptly notify each Lender as to the occurrence of each Additional Commitment Date, and (w) on each such date, the Total Commitment under, and for all purposes of, this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms Agreement shall be as set forth in a separate assumption agreement among Holdings, increased by the Borrower, the Qualified aggregate amount of such Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such timeCommitments, (x) incur and repay Loans ratably as between on each such date Schedule I shall be deemed modified to reflect the new revised Commitments and of the Commitments outstanding immediately prior to such incurrence and affected Lenders, (y) permanently reduce Commitments ratably as between upon surrender of any old Revolving Notes by the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitmentsrespective Lender (or, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything if lost, a standard lost note indemnity), to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of extent requested by any Lender, a new Revolving Note will be issued, at Furniture Brands' expense, to amend such Additional Lender, to be in conformity with the Loan Documents requirements of Section 1.05 (with appropriate modifications) to the extent necessary needed to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement reflect the requirements in the preceding two sentences, (2) ensure pro rata allocations revised Commitment of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence Lender and (3z) implement ratable participation in on such date with respect to all outstanding Letters of Credit between and all Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the Other participations by the Lenders in such Letters of Credit Extensions consisting and Unpaid Drawings to reflect the new Percentages of Commitments and the Commitments outstanding immediately prior to any such incurrence)Lenders.
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
Additional Commitments. At any time on or before the date that is two (2) years immediately following the Effective Date, the Borrower shall have the right, exercisable no more than two (2) times, to request that the Administrative Agent permit additional Commitments to be added under the terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Fifty Million Dollars ($50,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the requested amount being, the “Additional Commitment Amount”), to be allocated to either the Term Loan Commitments or the Revolving Credit Commitments, subject to the following:
(i) The aggregate amount of the Lenders’ Commitments shall not exceed Eight Hundred Fifty Million Dollars ($850, 000,000) less the amounts of any prior reductions or terminations of Commitments pursuant to Section 2,09(d), and (ii) the Additional Commitment Amount shall not exceed One Hundred Fifty Million Dollars ($150,000,000) in the aggregate.
(b) Any such request shall be made by the Borrower may from time giving written notice (the “Additional Commitment Notice”) to time the Administrative Agent within twenty one (21) months after the Effective Date, which notice shall set forth such details with respect thereto as are reasonably requested by notice to the Administrative Agent. Upon receipt of the Additional Commitment Notice, request thatthe Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the terms sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up rejections with respect to the Additional Facilities Commitment Amount in by the aggregate in additional Commitments; provided that Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to being in existence at such additional Commitmentstime, (ii) the Borrower issuing substitute Notes, (iii) the Accepting Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Initial Accepting Lender’s pro rata share of outstanding Loans and LC Exposure, if applicable, matches the ratio of its increased Commitment to the aggregate amount of all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender and (v) the Borrower paying all of the Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with paragraph (b) above, the Borrower may designate one or more proposed lenders to the Administrative Agent and the Issuing Lender to become Lenders under this Agreement with respect to such additional Commitments shall have balance of the same Guaranties and Collateral Additional Commitment Amount (if anybut in no event with proposed commitments of less than $10,000,000 unless the Administrative Agent consents thereto), subject in each case to the prior approval of the Administrative Agent and the Issuing Lender, which approvals shall rank pari passu not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, including each such new Lender’s compliance with the Loans to be made pursuant to Section 2.1A(iprovisions of clauses (ii), (iii) the representations and warranties in (v) of Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than9.04(b), and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) Borrower paying all of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to ’s reasonable out-of-pocket expenses in connection with the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loansforegoing. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the The Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform promptly pay to the respective percentages applicable Lenders their share of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different payments received from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth Lenders in a separate assumption agreement among Holdings, accordance with the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, immediately preceding sentence.
(xd) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary contained in Section 10.5this Agreement or the other Loan Documents, each Lender hereby authorizes the Administrative Agent is expressly permitted, without (on behalf of the consent Lenders) to enter into amendments and modifications of any Lender, to amend this Agreement and the other Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement reflect the requirements in adjustment of the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Loans, the addition of new Lenders and the other matters contemplated by this Section.
Appears in 1 contract
Sources: Credit Agreement (Nationwide Health Properties Inc)
Additional Commitments. The Borrower may (i) Notwithstanding anything in this Section 11.12 to the contrary, at any time after the Closing Date and from time to time after the Effective Date, by notice prior to the Administrative Agent, request that, Revolving Facility Maturity Date this Agreement may be amended (or amended and restated) to give effect to (a) an increase to the Revolving Commitments on the same terms and subject conditions as the existing Revolving Commitments, (b) additional commitments to make term loans with terms identical to the conditions contained in this Agreement, Qualified Additional Lenders provide up Term Loan and/or (c) additional commitments to make term loans to be structured as a separate term loan tranche with terms different from the Term Loan (each such increase to the Additional Facilities Amount Revolving Commitments and/or establishment of a new tranche of term loans being referred to herein as an “Incremental Facility,” and all such increases being referred to collectively herein as the “Incremental Facilities”) to be made to the Borrower by an agreement in writing entered into by the aggregate Borrower, the Administrative Agent and each Person (including any then existing Lender) that shall agree to provide any portion of such Incremental Facility (but without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had already been a Lender under this Agreement with the Revolving Commitment and/or term loans set forth in additional Commitmentssuch Agreement; provided that provided, however, that: (i) the aggregate principal amount of all such Incremental Facilities structured as increases to the Revolving Commitments effected after the Closing Date pursuant to this Section 11.12(b) plus the amount of the Total Revolving Commitment as of the Closing Date shall not exceed $200,000,000, (ii) the aggregate principal amount of all such Incremental Facilities effected after the Closing Date pursuant to this Section 11.12(b) shall not exceed $200,000,000, (iii) each such increase effected pursuant to this Section 11.12(b) shall be in a minimum amount of $10,000,000 (and integral multiples of $1,000,000 in excess thereof), (iv) all representations and warranties in Article VI hereof must be true and correct in all material respects upon giving effect to any such Incremental Facility, and no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to at the time of such additional Commitments, (ii) request and on the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, such increase (assuming a Borrowing in respect of any applicable increases to the maturity date of the existing Commitments (or any Other Credit Extensions constituting Revolving Commitments), (v) no Commitment of any Lender shall be increased without the terms consent of such Lender, (other vi) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid, (vii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of any such Incremental Facility (assuming a Borrowing of the entire Incremental Facility in respect of any applicable increases to the Revolving Commitments) and the concurrent retirement of any Indebtedness of the Borrower or any Subsidiary, (A) the Credit Parties would be in compliance with the financial covenant set forth in Section 8.07 and (B) the Consolidated Total Net Leverage Ratio shall be equal to or less than 4.25 to 1.00, in each case as of the last day of the most recently ended fiscal quarter of the Borrower for which the Administrative Agent has received the Required Financial Information, (viii) with respect to pricing any Incremental Facility structured as a separate term loan tranche, the “all-in yield” (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year life to maturity and the remaining life to maturity for the purposes of determining any increases to the applicable interest rate margin), but excluding any structuring, arrangement, underwriting or maturitysimilar fees paid or payable to the applicable lead arranger for such facility not shared with the applicable lenders) applicable to such Incremental Facility may not exceed the total “all-in yield” (determined on the same basis) for any then-existing series of Term Loans by more than 0.50% without a corresponding increase in the all-in yield applicable to such existing Term Loans so that such all-in yield applicable to such existing Term Loans is 0.50% less than that applicable to such Incremental Facility (it being understood that the Applicable Margin for such existing Term Loans may be increased and/or additional fees may be paid to the Lenders holding such existing Term Loans to the extent necessary to satisfy such requirement), (ix) the final maturity date of any additional Commitments Incremental Facility structured as a separate term loan tranche shall be no earlier than the latest Maturity Date hereunder or, if later, the maturity date of any Incremental Facility then in effect, (x) the weighted average life to maturity of any such Incremental Facility structured as a separate term loan tranche shall not be shorter that the remaining average weighted life to maturity of the Term Loan (without giving effect to any prepayments thereof), (xi) subject to the limitations set forth above, the interest rate margin, weighted average life to maturity and final maturity applicable to any such Incremental Facility structured as a separate term loan tranche shall be determined at the time such Incremental Facility is made available by the Borrower and the Loans to be made thereunder, Lenders providing such Incremental Facility and (xii) subject to the extent limitations set forth above, all other terms applicable to any Incremental Facility structured as a separate term loan tranche, if not consistent with the Commitments and existing Term Loans, must be more favorable to the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be Borrower or reasonably satisfactory acceptable to the Administrative Agent, (vi) such additional . The Loans and Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended established pursuant to this Section 2.1A(ii11.12(b) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional shall constitute Loans and Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”)under, then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans and shall be increased such that after giving effect entitled to such increasesall the benefits afforded by, this Agreement and the Yield Differential shall equal 50 basis points; provided thatother Loan Documents, to and shall, without limiting the extent any portion of foregoing, benefit equally and ratably from the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to Guarantees and security interests created by the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (orCollateral Documents. The Borrower may offer, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection consultation with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition increase to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (xi) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior existing Lenders (but no Lender will have an obligation to such incurrence increase its Commitment hereunder) and (yii) permanently reduce Commitments ratably if necessary because the requested commitments for such Incremental Facility cannot be obtained from existing Lenders, any third party financial institutions that otherwise would qualify as between the new Commitments and the Commitments outstanding immediately prior Eligible Assignees (in each case which must be reasonably acceptable to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without in the consent case of any Lender, to amend such Person providing additional Revolving Commitments hereunder). Upon the Loan Documents to the extent necessary to give effect to any increases establishment pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).Section
Appears in 1 contract
Sources: Credit Agreement (Epiq Systems Inc)
Additional Commitments. The Upon the request of the Borrower may from time to time after (such request, the Effective Date, by notice "Additional ---------- Syndication Notice") given to the Administrative Agent, request that, on Agent within twenty-four (24) ------------------ months after the terms and subject to the conditions contained in date of this Agreement, Qualified and provided that there is no Default or Event of Default, the Administrative Agent shall use commercially reasonable efforts to obtain additional Commitments in the aggregate amount of up to Fifty Million Dollars ($50,000,000) (the "Additional Commitment Amount"), subject to ---------------------------- the following:
(a) Promptly after delivery of the Additional Syndication Notice, the Administrative Agent shall request that the existing Lenders provide up accept a pro rata share of the Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an "Accepting Lender"), pro rata based on the sum of their then existing ---------------- Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (a) within ten (10) ---------- Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Facilities Commitment Amount in by the aggregate in additional Commitments; provided that Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to being in existence at such additional Commitmentstime, (ii) the Borrower issuing substitute Notes, (iii) the Accepting Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Initial Accepting Lender's pro rata share of outstanding Loans and LC Exposure matches the ratio of its increased Commitment to the aggregate amount of all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonable acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender and (v) the Borrower paying all of the Administrative Agent's reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(b) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with paragraph (a) ------------- above, the Borrower may designate one or more proposed lenders to the Administrative Agent and the Issuing Lender to become Lenders under this Agreement with respect to such additional Commitments shall have balance of the same Guaranties and Collateral Additional Commitment Amount (if anybut in no event with proposed commitments of less than $5,000,000 unless the Administrative Agent consents thereto), subject in each case to the prior approval of the Administrative Agent and the Issuing Lender, which approvals shall rank pari passu not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become Credit Agreement ---------------- additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender's pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, including each such new Lender's compliance with the Loans to be made pursuant to Section 2.1A(iprovisions of clauses (ii), (iii) the representations and warranties in (v) of Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than9.04(b), and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) ------------ ----- --- --------------- Borrower paying all of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to 's reasonable out-of-pocket expenses in connection with the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loansforegoing. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the The Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform promptly pay to the respective percentages applicable Lenders their share of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different payments received from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Lenders in accordance with the immediately preceding sentence. Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).Agreement ----------------
Appears in 1 contract
Sources: Credit Agreement (Nationwide Health Properties Inc)
Additional Commitments. The Borrower may from time to time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (ia) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (iib) the Loans loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iiic) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (ivd) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (ve) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 Agent and (ixf) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate LIBOR floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the 43 CREDIT AGREEMENT Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate LIBOR floor” being applicable to the additional Commitments, the “LIBO Rate LIBOR floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate LIBOR floor” applicable to the Loans at such time, a “LIBO Rate LIBOR floor” shall be added) to an amount not to exceed the “LIBO Rate LIBOR floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, U.S. Holdings, U.S. ▇▇▇▇▇, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Rate Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).
Appears in 1 contract
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after request: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) other financial institutions mutually approved by Agent, the Effective DateSwingline Lender and the Borrower, to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the total Commitments and the Maximum Revolver Amount may be increased, in increments of not less than Twenty-Five Million Dollars ($25,000,000), by notice up to no more than Two Hundred Million Dollars ($200,000,000) in the Administrative Agent, request that, on the terms aggregate (for a maximum of total Commitments of Six Hundred Million Dollars ($600,000,000)). Each such increase and new Commitment shall be subject to the conditions contained in this Agreementprior satisfaction of the following conditions, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that as determined by Agent:
(i) Borrower shall have requested the increased or new Commitment in writing to Agent not less than thirty (30) days prior to the effective date of the proposed new or increased Commitment;
(ii) Agent and ▇▇▇▇▇▇▇▇ shall have agreed upon an arrangement fee in respect of any such proposed new or increased Commitment and shall have entered into a fee letter evidencing the same (which fee letter, upon its execution and deliver by each party thereto, shall be deemed a “Loan Document” for all purposes);
(iii) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(iv) there shall exist no Default or Event of Default both at the time of the request for the increased or new Commitment and at the time at which the increased or new Commitment becomes effective;
(v) Agent and Swingline Lender shall have occurred and be continuing or would occur after giving effect provided its prior written consent to such additional Commitmentsincrease or new Commitment, which consent shall be a matter of its reasonable discretion;
(iivi) the Loans under such additional Commitments Borrower shall have the same Guaranties deliver to Agent all documents (including, without limitation, new Notes and Collateral (if anyLoan Document modifications as Agent may reasonably request), legal opinions, certificates and instruments as Agent may require in its reasonable discretion in connection with such increase in the Commitments or new Commitment and shall rank pari passu pay all fees owing hereunder or under any fee letter in connection with such increased or new Commitment;
(vii) as of the Loans to be made pursuant to Section 2.1A(i)date of such increased or new Commitment, (iii) the representations and warranties contained in Section 5 the Loan Documents shall be true and correct in all material respects prior as of such date with the same force and effect as if made on and as of such date (other than (A) those representations and warranties which are qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects on and as of such date, and (B) in each case, to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects, or true and correct in all respects, as the case may be, on and as of such earlier date);
(viii) both before and after giving effect to any such additional increased or new Commitments, Borrower (ivor HCI, if applicable) shall be in pro forma compliance with each covenant set forth in Section 7.17; and
(ix) each Acceding Lender shall have delivered to Agent (A) a duly executed Accession Agreement, whereby upon effectiveness thereof such ▇▇▇▇▇▇ agrees to make Advances pursuant to the terms hereof, and (B) such other documents, instruments and agreements as Agent may require, including a completed and executed administrative details reply, administrative questionnaire or similar document in form satisfactory to Agent. A new Acceding Lender shall become party to this Agreement by entering into an Accession Agreement. Upon the due execution and delivery of each Accession Agreement and satisfaction of the foregoing conditions, the Maximum Revolver Amount shall thereupon be increased by the amount of such Acceding Lender’s Commitment; provided, that Agent (in its capacity as such) shall have given its prior written consent to such accession. No Lender is obligated to increase its
(1) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunderAcceding Lender, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i)already a Lender, shall be reasonably satisfactory a “Lender” hereunder and a party hereto, entitled to the Administrative Agentrights and benefits, and subject to the duties, of a Lender under the Loan Documents, and (2) Schedule C-1 hereto shall be deemed to be amended to reflect (a) the name, address, Commitment and Pro Rata Share of such Acceding Lender, (vib) the Maximum Revolver Amount as increased by such additional Acceding Lender’s Commitment, and (c) the changes to the other Lenders’ respective Pro Rata Shares and any changes to the other Lenders’ respective Commitments (in the event such Lender is also the Acceding Lender) resulting from such assumption and such increased Maximum Revolver Amount. On the effective date of any such increased or New Commitment, each (I) Lender’s Pro Rata Share shall be made available no more than four times prior recalculated to reflect the Commitment Termination Datenew proportionate share of the revised total Commitments and increased Maximum Revolver Amount, (viiII) and each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional relevant Acceding Lender shall be $2,500,000 and (ix) if make available to Agent such amounts in immediately available funds as Agent determines, for the Initial Yield applicable benefit of the other Lenders, as being required to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”)cause, then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increasesincrease and paying such amounts to such other Lenders, the Yield Differential shall equal 50 basis points; provided that, to the extent any each Lender’s portion of the Yield Differential is attributable outstanding Advances of all Lenders to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at equal its Pro Rata Share of such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loansoutstanding Advances. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion Upon request of any such additional Commitments. If and Acceding Lender, Borrower shall issue a Revolving Loan Note to evidence the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount Principal Amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)▇▇▇▇▇▇’s Commitment.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Additional Commitments. The (a) So long as the Additional Loan ---------------------- Commitment Requirements are satisfied at the time of the delivery of the written notice referred to below, the Borrower may shall have the right at any time and from time to time after the Effective Date, by and upon at least 30 days prior written notice to the Administrative Agent, to request thaton one or more occasions that one or more Banks (and/or one or more other Persons which will become Banks as provided below) provide:
(I) Tranche B Term Loan Commitments and, on the terms and subject to the applicable terms and conditions contained in this Agreement and the relevant Tranche B Term Loan Commitment Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided make Tranche B Term Loans pursuant thereto, it being understood and agreed, however, that (i) no Default or Event Bank shall be obligated to provide a Tranche B Term Loan Commitment as a result of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitmentsany request by the Borrower, (ii) until such time, if any, as (x) such Bank has agreed in its sole discretion to provide a Tranche B Term Loan Commitment and executed and delivered to the Loans under such additional Commitments Administrative Agent a Tranche B Term Loan Commitment Agreement in respect thereof as provided in Section 1.14(b) below and (y) the other conditions set forth in Section 1.14(b) shall have been satisfied, such Bank shall not be obligated to fund any Tranche B Term Loans, (iii) any Bank (or, in the same Guaranties and Collateral circumstances contemplated by clause (if any)vii) below, any other Person which will qualify as an Eligible Transferee) may so provide a Tranche B Term Loan Commitment without the consent of any other Bank, (iv) each provision of Tranche B Term Loan Commitments pursuant to this Section 1.14 on a given date, and the amount of each Tranche B Term Loan Sub-Facility, shall rank pari passu with be in a minimum aggregate amount (for all Banks (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Banks)) of at least $20,000,000, (v) the aggregate amount of all Tranche B Term Loan Commitments permitted to be provided pursuant to this Section 1.14 and the aggregate principal amount of Tranche B Term Loans permitted to be made pursuant to Section 2.1A(i1.01(e) shall not, in either case, when added to the aggregate amount of all Additional Revolving Loan Commitments permitted to be provided pursuant to this Section 1.14, exceed $100,000,000, (vi) the up-front fees payable in respect of the Tranche B Term Loan Commitments and Tranche B Term Loans under a Tranche B Term Loan Sub-Facility shall be as set forth in the Tranche B Term Loan Commitment Agreement for such Tranche B Term Loan Sub- Facility, (vii) if, after the Borrower has requested the then existing Banks (other than Defaulting Banks) to provide Tranche B Term Loan Commitments pursuant to this Section 1.14 on the terms to be applicable to the respective Tranche B Term Loan Sub-Facility, the Borrower has not received Tranche B Term Loan Commitments in an aggregate amount equal to that amount of Tranche B Term Loan Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower to the Administrative Agent as provided above), then the Borrower may request Tranche B Term Loan Commitments from Persons which would qualify as Eligible Transferees hereunder in aggregate amount equal to such deficiency on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Banks, provided -------- that any such Tranche B Term Loan Commitments provided by any such Eligible Transferee which is not already a Bank shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, and (viii) all actions taken by the Borrower pursuant to this Section 1.14(a)(I) shall be done in coordination with the Administrative Agent; and/or
(II) Additional Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Additional Revolving Loan Commitment Agreement, make Revolving Loans pursuant to Section 1.01(b), it being understood and agreed, however, that (i) no Bank shall be obligated to provide an Additional Revolving Loan Commitment as a result of any request by the Borrower, (ii) until such time, if any, as (x) such Bank has agreed in its sole discretion to provide an Additional Revolving Loan Commitment and executed and delivered to the Administrative Agent an Additional Revolving Loan Commitment Agreement in respect thereof as provided in Section 1.14(c) and (y) such other conditions set forth in Section 1.14(c) shall have been satisfied, such Bank shall not be obligated to fund any Revolving Loans, or participate in any Letters of Credit, in excess of the amounts provided for in Section 1.01(b) or 2.03, as the case may be, before giving effect to such Additional Revolving Loan Commitments provided pursuant to this Section 1.14, (iii) any Bank (or, in the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitmentscircumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Additional Revolving Loan Commitment without the consent of any other Bank, (iv) the maturity each provision of Additional Revolving Loan Commitments on a given date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to this Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment 1.14 shall be in a minimum aggregate principal amount (for all Banks (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Banks)) of at least $20,000,000, (v) the aggregate amount of $10,000,000, (viii) the minimum commitment of any Qualified all Additional Lender shall Revolving Loan Commitments permitted to be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended provided pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable 1.14, when added to the additional aggregate amount of all Tranche B Term Loan Commitments incurred permitted to be provided pursuant to this Section 2.1A(ii1.14 or the aggregate principal amount of Tranche B Term Loans permitted to be made pursuant to Section 1.01(e), shall not, in either case, exceed $100,000,000, (vi) exceeds the fees payable to any Bank providing an relevant Additional Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms Commitment shall be as set forth in the relevant Additional Revolving Loan Commitment Agreement, (vii) if, after the Borrower has requested the then existing Banks (other than Defaulting Banks) to provide Additional Revolving Loan Commitments pursuant to this Section 1.14 on the terms to be applicable thereto, the Borrower has not received Additional Revolving Loan Commitments in an aggregate amount equal to that amount of the Additional Revolving Loan Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower to the Administrative Agent as provided above), then the Borrower may request Additional Revolving Loan Commitments from Persons which would qualify as Eligible Transferees hereunder in aggregate amount equal to such deficiency on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Banks, provided that any such Additional Revolving Loan Commitments -------- provided by any such Eligible Transferee which is not already a separate assumption agreement among HoldingsBank shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, and (viii) all actions taken by the Borrower pursuant to this Section 1.14(a)(II) shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Tranche B Term Loan Commitments pursuant to this Section 1.14, (i) the Borrower, the Qualified Additional Lenders providing Administrative Agent and each such additional Revolving Commitments Bank or other Eligible Transferee (each, a "Tranche B Term Loan Bank") which agrees to provide a Tranche B Term Loan Commitment shall execute and deliver to the Administrative Agent a Tranche B Term Loan Commitment Agreement substantially in the form of Exhibit O-1, subject to such modifications in form and substance satisfactory to the Administrative Agent as may be necessary or appropriate in the case of any Tranche B Term Loan Sub-Facility (with the effectiveness of such Tranche B Term Loan Bank's Tranche B Term Loan Commitment to occur upon delivery of such Tranche B Term Loan Commitment Agreement to the Administrative Agent, the execution payment of any fees required in connection therewith and delivery the satisfaction of which agreement the other conditions in this Section 1.14(b) to the satisfaction of the Administrative Agent), (ii) if the proceeds of the Tranche B Term Loans of the respective Tranche B Term Loan Sub-Facility are to be utilized to finance a Permitted Acquisition on the respective Tranche B Term Loan Commitment Date, the Borrower shall deliver to the Administrative Agent the officer's certificate required to be delivered pursuant to Section 8.14(a)(x) in connection with such Permitted Acquisition , (iii) the Additional Loan Commitment Requirements shall have been satisfied and (iv) the Borrower shall deliver to the Administrative Agent an opinion, in form and substance satisfactory to the Agents, from counsel to the Borrower satisfactory to the Agents and dated such date, covering such matters similar to those set forth in the opinion of counsel delivered to the Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 and such other matters as the Agents may reasonably request. The Administrative Agent shall promptly notify each Bank as to the occurrence of each Tranche B Term Loan Commitment Date, and (x) on each such date Schedule I shall be deemed modified to reflect the Tranche B Term Loan Commitments of such Tranche B Term Loan Banks and (y) to the extent requested by such Tranche B Term Loan Banks, Tranche B Term Notes will be issued, at the Borrower's expense, to such Tranche B Term Loan Banks, to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the new Tranche B Term Loan Commitments.
(c) At the time of any provision of Additional Revolving Loan Commitments pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent and each such Bank or other Eligible Transferee (each, an "Additional Revolving Loan Bank") which agrees to provide an Additional Revolving Loan Commitment shall execute and deliver to the Administrative Agent a condition Revolving Loan Commitment Agreement substantially in the form of Exhibit O-2, subject to such modifications in form and substance satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Revolving Loan Bank's Additional Revolving Loan Commitment to occur upon delivery of such Revolving Loan Commitment Agreement to the Other Credit Extensions. If Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the other conditions in this Section 1.14(c) to the satisfaction of the Administrative Agent), (ii) if the proceeds of the Revolving Loans to be incurred pursuant to such Additional Revolving Loan Commitment are to be utilized to finance a Permitted Acquisition on the respective Additional Revolving Loan Commitment Date, the Borrower incurs new Commitments under this shall deliver to the Administrative Agent the officer's certificate required to be delivered pursuant to Section 2.1A(ii)8.14(a)(x) in connection with such proposed Permitted Acquisition, regardless of whether such Commitments are Other Credit Extensions(iii) the Additional Loan Commitment Requirements shall have been satisfied, (iv) the Borrower shall, in coordination with the Administrative Agent, repay all outstanding Revolving Loans of the ▇▇ ▇▇▇▇▇, and incur additional Revolving Loans from other ▇▇ ▇▇▇▇▇ in each case so that the ▇▇ ▇▇▇▇▇ participate in each Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.14) and with the Borrower being obligated to pay the respective ▇▇ ▇▇▇▇▇ the costs of the type referred to in Section 1.11 in connection with any such timerepayment and/or Borrowing and (v) the Borrower shall deliver to the Administrative Agent an opinion, in form and substance satisfactory to the Agents, from counsel to the Borrower satisfactory to the Agents and dated such date, covering such matters similar to those set forth in the opinion of counsel delivered to the Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 and such other matters as the Agents may reasonably request. The Administrative Agent shall promptly notify each Bank as to the occurrence of each Additional Revolving Loan Commitment Date, and (w) on each such date, the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Additional Revolving Loan Commitments, (x) incur and repay Loans ratably as between on each such date Schedule I shall be deemed modified to reflect the new revised Revolving Loan Commitments and of the Commitments outstanding immediately prior to such incurrence and affected Banks, (y) permanently reduce Commitments ratably as between upon surrender of any old Revolving Notes by the new Commitments respective Additional Revolving Loan Bank (or, if lost, a standard lost note indemnity in form and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything substance reasonably satisfactory to the contrary in Section 10.5Borrower), the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary requested by any Additional Revolving Loan Bank, a new Revolving Note will be issued, at the Borrower's expense, to give effect such Additional Revolving Loan Bank, to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable be in connection therewith (including amendments to (1) implement conformity with the requirements in of Section 1.05 (with appropriate modifications) to the preceding two sentences, (2) ensure pro rata allocations extent needed to reflect the revised Revolving Loan Commitment of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence Bank and (3z) implement ratable participation in on such date with respect to all outstanding Letters of Credit between and Unpaid Drawings, there shall be an automatic adjustment to the Other participations by the Banks in such Letters of Credit Extensions consisting and Unpaid Drawings to reflect the new RL Percentages of Commitments and the Commitments outstanding immediately prior to any such incurrence)Banks.
Appears in 1 contract
Additional Commitments. (a) The Parent Borrower may shall have the right at any time and from time to time after the Effective Date, by notice Date and prior to the Administrative Agent, Commitment Expiration Date to request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) so long as no Default or Event of Default is then in existence or would result therefrom) on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided pursuant to clause (vi) below) provide Additional Commitments (and, in connection therewith, to increase the Aggregate Multicurrency Letter of Credit Limit by a ratable amount with respect thereto) and, subject to the applicable terms and conditions contained in this Agreement and the relevant Additional Commitment Agreement, issue Letters of Credit; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Additional Commitment as a result of any request by the Parent Borrower, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Additional Commitment and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 1.14(b) and (y) such other conditions set forth in Section 1.14(b) shall have occurred and been satisfied, such Lender shall not be continuing or would occur after obligated to issue any Letters of Credit, in excess of the amount provided for in Section 1.01 before giving effect to such additional CommitmentsAdditional Commitments provided pursuant to this Section 1.14, (iii) any Lender (and/or one or more other Persons which will become Lenders as provided pursuant to clause (vi) below) may so provide an Additional Commitment without the consent of any other Lender (it being understood and agreed that the consent of the Administrative Agent, the Issuing Agent and the Issuing Lenders, if any (such consent, in either case, not to be unreasonably withheld or delayed) shall be required if any such Additional Commitments are to be provided by a Person which is not already a Lender), (iv) (x) each provision of Additional Commitments on a given date pursuant to this Section 1.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vi) below, banks or other financial institutions who will become Lenders)) of at least $1,000,000 and (y) the aggregate amount of Additional Commitments provided pursuant to this Section 1.14 shall not exceed $100,000,000, (v) the up-front fees payable to any Person providing an Additional Commitment in accordance with this Section 1.14 shall be as set forth in the relevant Additional Commitment Agreement, (vi) if, on or after the tenth Business Day following the request by the Parent Borrower of the then existing Lenders (other than Defaulting Lenders) to provide Additional Commitments pursuant to this Section 1.14 on the terms to be applicable thereto, the Parent Borrower has not received Additional Commitments in an aggregate amount equal to that amount of the Additional Commitments which the Parent Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Parent Borrower to the Administrative Agent as provided above), then the Parent Borrower may request Additional Commitments from other Lenders and/or other NAIC approved banks or financial institutions (unless otherwise agreed by the Parent Borrower and the Administrative Agent) in aggregate amount equal to such deficiency on terms which are no more favorable to such other bank or financial institution in any respect than the terms offered to the existing Lenders, and (vii) all actions taken by the Parent Borrower pursuant to this Section 1.14 shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Additional Commitments pursuant to this Section 1.14, (i) the Parent Borrower, each Designated Subsidiary Borrower, the Administrative Agent and each such Lender or other bank or financial institution which agrees to provide an Additional Commitment (each, an “Additional Lender”) shall execute and deliver to the Administrative Agent an Additional Commitment Agreement substantially in the form of Exhibit I, subject to such modifications in form and substance reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Lender’s Additional Commitment to occur upon delivery of such Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the other conditions in this Section 1.14 to the reasonable satisfaction of the Administrative Agent), (ii) all of the Loans under such additional Commitments outstanding Non-Fronted Letters of Credit shall have been (A) amended or (B) returned by each respective beneficiary to the same Guaranties Issuing Agent and Collateral either cancelled and/or exchanged for new or amended Non-Fronted Letters of Credit, which, in the case of (if anyA) and (B), and shall rank pari passu with the Loans give effect to be made pursuant to Section 2.1A(i)such Additional Commitment, (iii) if such Additional Lender is issuing Letters of Credit for the representations and warranties account of a U.S. Borrower or U.S. Borrowers, such Additional Lender shall provide to such U.S. Borrower or U.S. Borrowers the appropriate Internal Revenue Service forms (and, if applicable a Section 3.04(b)(ii) Certificate) described in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments3.04(b), (iv) the maturity date Parent Borrower and each Designated Subsidiary Borrower shall deliver to the Administrative Agent resolutions authorizing the incurrence of the Obligations to be incurred pursuant to each Additional Commitment, together with evidence of good standing of the Parent Borrower and each Designated Subsidiary Borrower (if requested) in the case of Designated Subsidiary Borrowers organized under the laws of the United States or any additional Commitments shall be no earlier thanState thereof, or any other jurisdiction where the concept of “good standing” is applicable, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, Parent Borrower shall deliver to the extent not consistent with the Commitments Administrative Agent an opinion, in form and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be substance reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior from counsel to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable Parent Borrower reasonably satisfactory to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent and dated such date, covering such matters similar to provide any portion those set forth in the opinions of any such additional Commitments. If and counsel delivered to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms Effective Date pursuant to Section 4.01(b) and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document matters as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms The Administrative Agent shall be promptly notify each Lender as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness occurrence of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii)each Additional Commitment Date, regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, and (x) incur on each such date, the Total Commitment under, and repay Loans ratably as between for all purposes of, this Agreement shall be increased by the new aggregate amount of such Additional Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce on each such date Annex I shall be deemed modified to reflect the revised Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)affected Lenders.
Appears in 1 contract
Sources: Credit Agreement (Endurance Specialty Holdings LTD)
Additional Commitments. The Borrower may from time to time after the Effective DateAt any time, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) if no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to at such additional time, the Borrower may, if it so elects, increase the aggregate amount of the Tranche A Commitments and/or the Tranche B Commitments, (ii) the Loans under either by designating a Person not theretofore a Bank to become a Bank or by agreeing with an existing Bank that such additional Commitments shall have the same Guaranties and Collateral (if any)Bank’s Tranche A Commitment and/or Tranche B Commitment, and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i)as applicable, shall be increased. Upon execution and delivery by the Borrower and such Bank or other Person of an instrument of assumption in form reasonably satisfactory to the Administrative Agent, such existing Bank shall have a Tranche A Commitment and/or Tranche B Commitment, as applicable, as therein set forth or such other Person shall become a Bank with a Tranche A Commitment and/or Tranche B Commitment, as applicable, as therein set forth and all the rights and obligations of a Bank with such a Commitment hereunder; provided that (vii) the Borrower shall provide prompt notice of such additional Commitments shall be made available no more than four times prior increase to the Commitment Termination DateAdministrative Agent, who shall promptly notify the other Banks and (viiii) each such additional Commitment shall be in a minimum the aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended such increases made pursuant to this Section 2.1A(ii2.1(d) exceeds by more than 50 basis points does not exceed $1,500,000,000. Upon any increase in the Revolving Loan Yield at such time (aggregate amount of the amount by which the Initial Yield applicable to the additional Tranche A Commitments incurred and/or Tranche B Commitments, as applicable, pursuant to this Section 2.1A(ii) exceeds 2.1(d), within five Domestic Business Days in the Revolving Loan Yield case of each Group of Base Rate Loans outstanding, and at the end of the then current Interest Period with respect thereto, in the case of each Group of Euro-Dollar Loans that are Tranche A Conventional Loans or Tranche B Conventional Loans, as applicable, then outstanding (or, in either case, at such earlier time being referred as is agreed to herein as by the “Yield Differential”Borrower and the Administrative Agent), then the “LIBO Rate floor” and/or the Applicable Margin applicable Borrower shall prepay such Group of Loans in its entirety, and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow Conventional Loans shall be increased of the applicable Class from the applicable Banks in proportion to their respective Commitments of such that Class after giving effect to such increasesincrease, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at until such time and as all outstanding Conventional Loans of such Class are held by the applicable Banks in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitmentsproportion. Notwithstanding anything to the contrary in Section 10.5herein, (i) the Administrative Agent is expressly permitted, without the consent designation of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases Person as a Bank pursuant to this Section 2.1A(ii2.1(d) shall be subject to the consent of the Administrative Agent, which shall not be unreasonably withheld or delayed; provided that no such consent shall be required if such Person is an affiliate of a Bank whose credit rating(s) from S&P and/or Moody’s are not lower than those of such Bank (or whose obligations under this Agreement are guaranteed by an affiliate whose credit rating(s) from S&P and/or Moody’s are not lower than those of such Bank) or if such Person was a Bank immediately prior to such designation; and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1ii) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred no such Person designated as a Bank pursuant to this Section 2.1A(ii2.1(d) and Loans outstanding immediately prior to shall be the Borrower or any such incurrence and of the Borrower’s affiliates or Subsidiaries or a Defaulting Bank or any of its Subsidiaries or any Person who, upon becoming a Bank hereunder, would constitute any of the foregoing Persons described in this clause (3ii) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)or a natural person.
Appears in 1 contract
Sources: Three Year Credit Agreement (American Express Credit Corp)
Additional Commitments. (a) The Borrower may from time Commitment Increase Lender hereby acknowledges and agrees that it hereby provides a new Commitment in the amount of $30,000,000, as set forth opposite its name on Schedule A to time after the Effective Date, by notice to the Administrative Agent, request this Amendment and each party hereto acknowledges and agrees that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such additional Commitments, (ii) the Loans under such additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made pursuant to Section 2.1A(i), (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth hereinprovisions of this Amendment, (a) at such time and in such manner as the Administrative Agent shall reasonably determineincluding, without limitation, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional proposed Commitment Increase, the Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth on Schedule A to this Amendment.
(b) The Commitment Increase Lender hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement and (B) it has received a copy of the Credit Agreement, together with copies of such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and to purchase its applicable Commitment, and on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or Collateral Agent; (ii) agrees that (A) from and after the Amendment Effective Date, it shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the Commitments set forth opposite its name on the Schedule A hereto, have the rights and obligations of a Lender thereunder and under the Loan Documents, (B) it will, independently and without reliance on the Administrative Agent or Collateral Agent, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (C) it will perform in accordance with their terms all of the obligations that by the terms of the Loan Documents are required to be performed by it as a separate assumption agreement among HoldingsLender; and (iii) appoints and authorizes Administrative Agent and Collateral Agent to take such actions as an agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent or Collateral Agent, as the Borrowercase may be, by the Qualified Additional Lenders providing terms thereof, together with such additional Revolving powers as are reasonably incidental thereto.
(c) The terms and conditions of any Commitments and Loans provided in connection with the Commitment Increase shall be identical to the Commitments and Loans under the Credit Agreement as in effect immediately prior to giving effect to this Amendment and such increased Commitments and the Administrative Agent, the execution and delivery of which agreement Loans thereunder shall be a condition deemed to be “Commitments” and “Loans”, respectively, for all purposes under the effectiveness Credit Agreement and other Loan Documents.
(d) The Commitment Increase Lender shall receive an Upfront Fee in connection with its Commitment in an amount such that no additional Upfront Fees shall be required to be paid to any existing Lender under clause (e)(vi) of Section 2 of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Agreement.
Appears in 1 contract
Additional Commitments. At any time on or before December 15, 2008, the Borrower shall have the right, exercisable no more than two (2) times, to request that the Administrative Agent permit additional Commitments to be added under the terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Fifty Million Dollars ($50,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the requested amount being, the “Additional Commitment Amount”), to be allocated to the Commitments, subject to the following:
(i) The aggregate amount of the Lenders’ Commitments shall not exceed One Billion Dollars ($1,000,000,000) less the amounts of any prior reductions or terminations of Commitments pursuant to Section 2.09(d), and (ii) the Additional Commitment Amount shall not exceed Three Hundred Million Dollars ($300,000,000) in the aggregate.
(b) Any such request shall be made by the Borrower may from time to time after giving written notice (the Effective Date, by notice “Additional Commitment Notice”) to the Administrative Agent before September 15, 2008, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, request thatthe Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the terms sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up rejections with respect to the Additional Facilities Commitment Amount in by the aggregate in additional Commitments; provided that Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to being in existence at such additional Commitmentstime, (ii) the Borrower issuing substitute Notes, (iii) the Accepting Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Initial Accepting Lender’s pro rata share of outstanding Loans and LC Exposure, if applicable, matches the ratio of its increased Commitment to the aggregate amount of all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender and (v) the Borrower paying all of the Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with paragraph (b) above, the Borrower may designate one or more proposed lenders to the Administrative Agent and the Issuing Lender to become Lenders under this Agreement with respect to such additional Commitments shall have balance of the same Guaranties and Collateral Additional Commitment Amount (if anybut in no event with proposed commitments of less than $10,000,000 unless the Administrative Agent consents thereto), subject in each case to the prior approval of the Administrative Agent and the Issuing Lender, which approvals shall rank pari passu not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, including each such new Lender’s compliance with the Loans to be made pursuant to Section 2.1A(iprovisions of clauses (ii), (iii) the representations and warranties in (v) of Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than9.04(b), and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) Borrower paying all of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to ’s reasonable out-of-pocket expenses in connection with the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loansforegoing. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the The Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform promptly pay to the respective percentages applicable Lenders their share of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different payments received from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth Lenders in a separate assumption agreement among Holdings, accordance with the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, immediately preceding sentence.
(xd) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary contained in Section 10.5this Agreement or the other Loan Documents, each Lender hereby authorizes the Administrative Agent is expressly permitted, without (on behalf of the consent Lenders) to enter into amendments and modifications of any Lender, to amend this Agreement and the other Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement reflect the requirements in adjustment of the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Loans, the addition of new Lenders and the other matters contemplated by this Section.” (cc) Schedule 2.01 is hereby deleted in its entirety and replaced with Schedule 2.01 attached hereto.
Appears in 1 contract
Sources: Credit Agreement (Nationwide Health Properties Inc)
Additional Commitments. The (a) So long as no Default or Event of Default then exists or would result therefrom, the United States Borrower may shall have the right at any time and from time to time after the Effective Date, by Initial Borrowing Date and prior to the 60th day after the Initial Borrowing Date upon at least 10 Business Days prior written notice to the Administrative AgentAgent (which shall promptly notify each of the Lenders), to request thaton up to two occasions in the aggregate that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Additional United States Term Commitments and Additional Revolving Commitments, on the terms and subject to the applicable terms and conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitmentsand make United States Term Loans and Revolving Loans pursuant thereto; provided that it being understood and agreed, however, that:
(i) no Default or Event Lender shall be obligated to provide an Additional Term Commitment as a result of Default any such request by the United States Borrower,
(ii) until such time, if any, as such Lender has agreed in its sole discretion to provide Additional Commitments and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 2.19(b) and such Additional Commitments shall have occurred and become effective, such Lender shall not be continuing obligated to fund any United States Term Loans in excess of its United States Term Commitment or would occur after Revolving Loans in excess of its Revolving Commitment, in each case, as in effect prior to giving effect to such additional Commitments, (ii) the Loans under such additional Additional Commitments shall have the same Guaranties and Collateral (if any), and shall rank pari passu with the Loans to be made provided pursuant to this Section 2.1A(i), 2.19,
(iii) any Lender (or any other Person which will become a Lender) may so provide Additional Commitments without the representations and warranties in Section 5 consent of any other Lender but with the prior consent of the Administrative Agent (which consent shall not be true and correct in all material respects prior to and after giving effect to such additional Commitments, unreasonably withheld),
(iv) the maturity date aggregate amount of any additional all Additional Commitments permitted to be provided pursuant to this Section 2.19 shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, not exceed an amount equal to $1,300,000,000 less the maturity date sum of the existing Commitments (or any Other Credit Extensions constituting Commitments), Total Revolving Commitment and Total United States Term Commitment on the Effective Date,
(v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior fees payable to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(iiLender (including any Person who will become a Lender) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified providing an Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms United States Term Commitment shall be as set forth in a separate assumption agreement among Holdingsthe relevant Additional Commitment Agreement,
(vi) each increase in the Commitments pursuant to this Section 2.19 shall be applied pro rata to the Additional United States Term Commitments and Additional Revolving Commitments (based on the Total United States Term Commitment and Total Revolving Commitment); and
(vii) all actions taken by the United States Borrower pursuant to this Section 2.19(a) shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Additional Commitments pursuant to this Section 2.19, (i) the United States Borrower, the Qualified Administrative Agent and each Lender or other Person which agrees to provide Additional Lenders providing Commitments (each, an "Additional Lender") shall execute and deliver to the Administrative Agent an Additional Commitment Agreement (with the effectiveness of such additional Revolving Additional Lender's Additional Commitments and to occur upon delivery of such Additional Commitment Agreement, to the Administrative Agent, the execution payment of any fees required in connection therewith and delivery the satisfaction of which agreement shall be a condition the other conditions in this Section 2.19(b) to the effectiveness reasonable satisfaction of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(iiAdministrative Agent), regardless of whether (ii) on the first date after such Commitments effectiveness on which United States Term Loans are Other Credit Extensions, to be incurred hereunder the United States Borrower shall, in coordination with the Administrative Agent, incur additional United States Term Loans from the Lenders in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of United States Term Loans pro rata on the basis of their respective United States Term Commitments (after giving effect to any increase in the Total United States Term Commitments pursuant to this Section 2.19) and (iii) on the first date after such timeeffectiveness on which Revolving Loans are to be incurred hereunder the United States Borrower shall, in coordination with the Administrative Agent, repay Revolving Loans of certain of the Revolving Lenders and incur additional Revolving Loans from the Revolving Lenders in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Total Commitments pursuant to this Section 2.19) and with the United States Borrower being obligated to pay to the respective Lenders the costs of the type referred to in Section 2.15 in connection with any such repayment and/or Borrowing. The Administrative Agent shall promptly notify each Lender as to the occurrence of each Additional Commitment Date, and (x) incur on each such date, the Total United States Term Commitment and repay Loans ratably as between Total Revolving Commitment under, and for all purposes of, this Agreement shall be increased by the new Commitments and the Commitments outstanding immediately prior to aggregate amount of such incurrence Additional Term Commitments, and (y) permanently reduce Commitments ratably as between on each such date Schedule 2.01 shall be deemed modified to reflect the new revised Revolving Commitments and United States Term Commitments of the Commitments outstanding immediately prior to such incurrence; provided that on the date of affected Lenders.
(c) In connection with each incurrence of the new CommitmentsUnited States Term Loans pursuant to Section 2.01(b), the Lenders and the United States Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding hereby agree that, notwithstanding anything to the contrary contained in Section 10.5this Agreement, the United States Borrower and the Administrative Agent is expressly permittedmay take all such actions as may be necessary to ensure that all Lenders with outstanding United States Term Loans continue to participate in each Borrowing of outstanding United States Term Loans (after giving effect to the incurrence of United States Term Loans pursuant to Section 2.01(b)) on a pro ratabasis, without including by adding the consent United States Term Loans to be so incurred to the then outstanding Borrowings of any Lender, to amend the United States Term Loans on a pro ratabasis even though as a result thereof such new United States Term Loan Documents (to the extent necessary required to give effect be maintained as Eurodollar Loans), may effectively have a shorter Interest Period than the then outstanding Borrowings of United States Term Loans and it is hereby agreed that (x) to the extent any increases pursuant to this then outstanding Borrowings of United States Term Loans that are maintained as Eurodollar Loans are affected as a result thereof, any costs of the type described in Section 2.1A(ii) and mechanical and conforming changes necessary or advisable 2.15 incurred by such Lenders in connection therewith shall be for the account of the United States Borrower or (including amendments y) to (1) implement the requirements extent the United States Term Loans to be so incurred are added to the then outstanding Borrowings of United States Term Loans which are maintained as Eurodollar Loans, the Lenders that have made such additional United States Term Loans shall be entitled to receive an effective interest rate on such additional United States Term Loans as is equal to the Adjusted LIBO Rate as in the preceding effect two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately Business Days prior to any the incurrence of such incurrence and (3) implement ratable participation in Letters additional United States Term Loans, plus the then Applicable Rate for such Loans until the end of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence).respective Interest Period or Interest Periods with respect thereto. ARTICLE III
Appears in 1 contract
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after the Effective Daterequest: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) request other financial institutions first approved by notice to the Administrative Agent, request thatin its sole and absolute discretion, on the terms to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”). Each such increase and new Commitment shall be subject to the conditions contained prior satisfaction of the following conditions, as determined by Agent:
(1) Borrower shall have requested the increase and new Commitment in this Agreement, Qualified Additional Lenders provide up writing to the Additional Facilities Amount in Agent not less than thirty (30) days prior to the aggregate in additional Commitments; provided that effective date of the proposed new or increased Commitment;
(i2) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(3) there shall exist no Default or Event of Default both at the time of the request for the increase of new Commitment and at the time at which the increase or new Commitment becomes effective;
(4) the Agent and the Requisite Lenders shall have occurred and be continuing or would occur after giving effect provided their prior written consent to such additional Commitmentsincrease or new Commitment, which consent shall be a matter of their sole and absolute discretion;
(ii5) Borrower shall deliver to the Loans under such additional Commitments shall have Agent all documents (including, without limitation, new Notes and Loan Document modifications as the same Guaranties and Collateral (if anyAgent may reasonably request), legal opinions, certificates and instruments as the Agent may require in its sole and absolute discretion in connection with such increase or new Commitment;
(6) no event, circumstance or condition shall rank pari passu with exist which reasonably could be expected to have a Material Adverse Effect;
(7) as of the Loans to be made pursuant to Section 2.1A(i)date of such increase or new Commitment, (iii) the representations and warranties contained in Section 5 the Loan Documents shall be true and correct in all material respects prior to respects, with the same force and after giving effect to as if made on and as of such additional Commitments, date (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, except to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory of changes in facts or circumstances that have been disclosed to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in Lenders and do not constitute a minimum aggregate principal amount Default or Event of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to Default under this Agreement or any other Loan Document Document, and except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date); and
(8) each Acceding Lender shall have delivered to Agent, an Accession Agreement in substantially the Administrative form of Exhibit H hereto (an “Accession Agreement”) with Borrower and Agent may reasonably request. If any and assuming thereunder an increased Commitment or a new Commitments incurred Commitment in an amount to be agreed upon by Borrower, such Acceding Lender and Agent, to make Loans pursuant to the terms hereof. A new Acceding Lender shall become party to this Section 2.1A(ii) are to have terms that are different from Agreement by entering into an Accession Agreement. Upon the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the due execution and delivery of which agreement each Accession Agreement and satisfaction of the foregoing conditions, the Maximum Amount shall thereupon be increased by the amount of such Acceding Lender’s Commitment; provided, that the Agent shall have given its prior written consent to such accession, as Agent. No Lender is obligated to increase its Commitment under any circumstances whatsoever, and no Lender’s Commitment may be increased except by its execution and delivery of an Accession Agreement. On the effective date specified in any duly executed and delivered Accession Agreement: (1) the Acceding Lender, to the extent not already a Lender, shall be a condition “Lender” hereunder and a party hereto, entitled to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii)rights and benefits, regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything subject to the contrary in Section 10.5duties, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend a Lender under the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentencesDocuments, (2) ensure pro rata allocations Schedule C hereto shall be deemed to be amended to reflect (a) the name, address, Commitment, Pro Rata Share of Eurodollar Loans such Acceding Lender, (b) the Maximum Amount as increased by such Acceding Lender’s Commitment, and Base Rate Loans between Loans incurred pursuant (c) the changes to this Section 2.1A(iithe other Lenders’ respective Pro Rata Shares and any changes to the other Lenders’ respective Commitments (in the event such Lender is also the Acceding Lender) resulting from such assumption and Loans outstanding immediately prior to any such incurrence increased Maximum Amount, and (3) implement ratable participation Schedule D shall be deemed to be amended to reflect such Acceding Lender’s wire transfer instructions specified in Letters its Accession Agreement. Each Lender’s Pro Rata Share shall be recalculated to reflect the new proportionate share of Credit between the Other Credit Extensions consisting revised total Commitments and increased Maximum Amount. Upon request of any Acceding Lender, Borrower shall issue a Revolving Loan Note to evidence the Principal Amount of such Lender’s Commitment. All new Loans occurring after an increase of the total Commitments and the Commitments outstanding immediately prior to any such incurrence)Maximum Amount shall be funded in accordance with each Lender’s revised Pro Rata Share.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Additional Commitments. The Borrower may from time Subject to time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreementset forth herein, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) so long as no Default or Event of Default shall have occurred and be continuing continuing, the Company shall have the right during the period from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of one or would occur after giving effect more increases to the Aggregate U.S. Revolving Committed Amount (the “Additional Commitments”) by an aggregate amount of up to FIVE HUNDRED MILLION DOLLARS ($500,000,000). The following terms and conditions shall apply to all Additional Commtiments: (a) the loans made under any such additional CommitmentsAdditional Commitment shall constitute Borrower Obligations, (iib) the Loans under such additional Commitments Additional Commitment shall have the same Guaranties and Collateral terms (if any)including interest rate) as the existing Loans, (c) any Lender providing such Additional Commitment shall be entitled to the same voting rights as the existing Lenders and shall rank pari passu be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (d) any such Additional Commitment shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the Loans to be made pursuant to Section 2.1A(i)terms set forth below, (iii) the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent, (vie) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Additional Commitment shall be in a minimum aggregate principal amount of $10,000,000100,000,000 and integral multiples of $1,000,000 in excess thereof, (viiif) the minimum commitment proceeds of any Qualified Loans under any Additional Commitment will be used for general corporate purposes of the Company, including without limitation, the repurchase of the Company’s shares, (g) the Company shall execute such promissory notes as are necessary and requested by the Lenders to reflect the Additional Commitments, (h) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied and (i) the Administrative Agent shall have received from the Company (i) updated financial projections and an officer’s certificate demonstrating that, after giving effect to any such Additional Commitment, the Company will be in compliance with the financial covenants set forth in Section 6.6, (ii) copies of resolutions of the board of directors or comparable managing body of the Company approving the Additional Commitments and the transactions contemplated thereby, as may be reasonably requested by the Administrative Agent and (iii) a favorable legal opinion of counsel to the Company relating to such Additional Commitments, in each case in form and substance satisfactory to the Administrative Agent. Participation in any Additional Commitment shall be offered first to each of the existing Lenders, but each such Lender shall be $2,500,000 and (ix) if the Initial Yield applicable have no obligation to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at provide all or any portion of any such time (Additional Commitment. If the amount of any Additional Commitment requested by the Company shall exceed the commitments which the Initial Yield applicable existing Lenders are willing to the additional Commitments incurred pursuant provide with respect to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”)Additional Commitment, then the “LIBO Rate floor” and/or the Applicable Margin applicable Company may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Additional Commitment not taken by existing Lenders; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Company may reasonably request. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 9.5(c)) of the outstanding Loans shall be increased such that and Participation Interests to the Lenders providing any Additional Commitment so that, after giving effect to such increasesassignments, each Lender (including the Yield Differential shall Lenders providing the Additional Commitments) will hold Loans and Participation Interests equal 50 basis points; provided thatto its Commitment Percentage of all outstanding Loans and LOC Obligations. The Administrative Agent is authorized to enter into, to the extent any portion on behalf of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional CommitmentsLenders, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications amendment to this Credit Agreement or any other Loan Credit Document as may be necessary to incorporate the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Additional Commitment.
Appears in 1 contract
Sources: Credit Agreement (Ims Health Inc)
Additional Commitments. The Provided there exists no Default or Event of Default, Borrower may from time to time after the Effective Daterequest: (i) any one or more existing Lenders to increase their respective Commitments, or (ii) request other financial institutions first approved by notice to the Administrative Agent, request thatin its sole and absolute discretion, on to agree to a Commitment (each such existing Lender who has agreed to increase its Commitment or such other financial institution who has agreed to provide a new Commitment, an “Acceding Lender”), so that the terms total Commitments and the Maximum Amount may be increased by up to no more than Two Hundred Twenty-Five Million Dollars ($225,000,000) in the aggregate (for a maximum of total Commitments of Three Hundred Million Dollars ($300,000,000)). Each such increase and new Commitment shall be subject to the conditions contained prior satisfaction of the following conditions, as determined by Agent:
(1) Borrower shall have requested the increased or new Commitment in this Agreement, Qualified Additional Lenders provide up writing to Agent not less than thirty (30) days prior to the Additional Facilities Amount in effective date of the aggregate in additional Commitments; provided that proposed new or increased Commitment;
(i2) the applicable Acceding Lender shall have underwritten and approved by its credit committees the proposed new or increased Commitment;
(3) there shall exist no Default or Event of Default both at the time of the request for the increase or new Commitment and at the time at which the increase or new Commitment becomes effective;
(4) Agent and the Requisite Lenders shall have occurred and be continuing or would occur after giving effect provided their prior written consent to such additional Commitmentsincrease or new Commitment, which consent shall be a matter of their sole and absolute discretion;
(ii5) the Loans under such additional Commitments Borrower shall have the same Guaranties deliver to Agent all documents (including, without limitation, new Notes and Collateral (if anyLoan Document modifications as Agent may reasonably request), legal opinions, certificates and instruments as Agent may require in its sole and absolute discretion in connection with such increase in the Commitments or new Commitment and shall rank pari passu pay all fees owing hereunder or under the Fee Letter in connection with such increased or new Commitment;
(6) no event, circumstance or condition shall exist which reasonably could be expected to have a Material Adverse Effect;
(7) as of the Loans to be made pursuant to Section 2.1A(i)date of such increase or new Commitment, (iii) the representations and warranties contained in Section 5 the Loan Documents shall be true and correct in all material respects prior to respects, with the same force and after giving effect to as if made on and as of such additional Commitments, date (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior to, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), (v) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, except to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory of changes in facts or circumstances that have been disclosed to the Administrative Agent, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in Lenders and do not constitute a minimum aggregate principal amount Default or Event of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to Default under this Agreement or any other Loan Document Document, and except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date); and
(8) each Acceding Lender shall have delivered to Agent, an Accession Agreement in substantially the Administrative form of Exhibit H hereto (an “Accession Agreement”) with Borrower and Agent and assuming thereunder an increased Commitment or a new Commitment in an amount to be agreed upon by Borrower, such Acceding Lender and Agent, to make Loans pursuant to the terms hereof together with such other documents, instruments and agreements as Agent may reasonably requestrequire, including a completed and executed administrative details reply, administrative questionnaire or similar document in form satisfactory to Agent. If any A new Commitments incurred pursuant Acceding Lender shall become party to this Section 2.1A(ii) are to have terms that are different from Agreement by entering into an Accession Agreement. Upon the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the due execution and delivery of which agreement each Accession Agreement and satisfaction of the foregoing conditions, the Maximum Amount shall thereupon be increased by the amount of such Acceding Lender’s Commitment; provided, that Agent shall have given its prior written consent to such accession, as Agent. No Lender is obligated to increase its Commitment under any circumstances whatsoever, and no Lender’s Commitment may be increased except by its execution and delivery of an Accession Agreement. On the effective date specified in any duly executed and delivered Accession Agreement: (1) the Acceding Lender, to the extent not already a Lender, shall be a condition “Lender” hereunder and a party hereto, entitled to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii)rights and benefits, regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything subject to the contrary in Section 10.5duties, the Administrative Agent is expressly permitted, without the consent of any Lender, to amend a Lender under the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentencesDocuments, (2) ensure pro rata allocations Schedule C hereto shall be deemed to be amended to reflect (a) the name, address, Commitment, Pro Rata Share of Eurodollar Loans such Acceding Lender, (b) the Maximum Amount as increased by such Acceding Lender’s Commitment, and Base Rate Loans between Loans incurred pursuant (c) the changes to this Section 2.1A(iithe other Lenders’ respective Pro Rata Shares and any changes to the other Lenders’ respective Commitments (in the event such Lender is also the Acceding Lender) resulting from such assumption and Loans outstanding immediately prior to any such incurrence increased Maximum Amount, and (3) implement ratable participation Schedule D shall be deemed to be amended to reflect such Acceding Lender’s wire transfer instructions specified in Letters its Accession Agreement. Each Lender’s Pro Rata Share shall be recalculated to reflect the new proportionate share of Credit between the Other Credit Extensions consisting revised total Commitments and increased Maximum Amount. Upon request of any Acceding Lender, Borrower shall issue a Revolving Loan Note to evidence the Principal Amount of such Lender’s Commitment. All new Loans occurring after an increase of the total Commitments and the Commitments outstanding immediately prior to any such incurrence)Maximum Amount shall be funded in accordance with each Lender’s revised Pro Rata Share.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Additional Commitments. The Borrower may from time (a) Subject to the terms and conditions hereof, at any time after the Effective Date, by notice to the Administrative Agent, request that, on the terms and subject to the conditions contained in this Agreement, Qualified Additional Lenders provide up to the Additional Facilities Amount in the aggregate in additional Commitments; provided that (i) no Default or Event of Default shall have has occurred and be is continuing or would occur after giving effect to such additional Commitments, and that the Borrower is in pro forma compliance with the financial covenants in Section 5.1(11) (ii) assuming the Loans under such additional Commitments shall have full incurrence and application of the same Guaranties and Collateral (if anynew Indebtedness in question), the Borrower may request that the Revolving Credit Lenders or any other financial institution provide additional Revolving Credit Commitments (each, an “Additional Commitment”) which shall serve to increase the Revolving Credit, such that further Revolving Loans become available thereunder upon identical terms and conditions.
(b) Any Additional Commitment shall rank pari passu with the Loans to be made documented pursuant to Section 2.1A(i), (iii) an Additional Commitment Agreement executed by the representations and warranties in Section 5 shall be true and correct in all material respects prior to and after giving effect to such additional Commitments, (iv) the maturity date of any additional Commitments shall be no earlier than, and no scheduled mandatory commitment reduction shall be required prior toBorrower, the maturity date of Person providing the existing Commitments Additional Commitment (or any Other Credit Extensions constituting Commitments), (vthe “Additional Lender”) the terms (other than with respect to pricing or maturity) of any additional Commitments and the Loans to be made thereunder, to the extent not consistent with the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), shall be reasonably satisfactory to the Administrative Agent. Upon satisfaction of the conditions precedent set out therein, (vi) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional relevant Additional Commitment shall be in a minimum aggregate principal amount of $10,000,000become effective, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ixi) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so promptly notify each Lender as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted agreement, and (bii) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(iiSchedule 1.1(a) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall deemed to be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, modified accordingly.
(xc) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary in Section 10.5, the Administrative Agent is expressly permitted, without this Agreement:
(i) no Additional Commitment shall require the consent of any Lender other than the applicable Additional Lender, but each Additional Lender shall require the approval of the Administrative Agent and the Issuing Banks, not to amend be unreasonably withheld;
(ii) no Revolving Credit Lender shall have any obligation to participate in any Additional Commitment unless it agrees to do so in its sole discretion;
(iii) the aggregate amount of all Additional Commitments shall not exceed U.S.$100,000,000;
(iv) the aggregate amount of all Additional Commitments requested at any one time shall be an integral multiple of U.S.$5,000,000 and not less than U.S.$25,000,000;
(v) the Borrower may pay any upfront or other fees as may be agreed by any Additional Lender in connection with the provision by such Additional Lender of an Additional Commitment, and the Borrower may pay any arrangement or other fees as may be agreed by the Administrative Agent in connection with an Additional Commitment; and
(vi) the Administrative Agent shall have received and be satisfied with evidence of the payment of all Taxes (including Turkish stamp taxes, if any) exigible as a result of the increase of the Revolving Credit resulting from any Additional Commitment and any guarantee thereof.
(d) For greater certainty, any Additional Lender shall be entitled to share pro rata in any prepayments made by the Borrower pursuant to Section 2.9, and the obligations of the Credit Parties under any such Additional Commitment shall be secured pari passu with the other obligations of the Credit Parties under the Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement the requirements in the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Documents.
Appears in 1 contract
Additional Commitments. The Borrowers, acting through the Borrower may Representative, shall have the right from time to time after to request an increase in the Effective DateCommitment by up to $100,000,000 in the aggregate for all such requests, subject to each Lender’s receipt of all internal credit approvals and satisfaction of the following terms and conditions:
(a) Any request for increase in the total Commitments shall be by the Borrower Representative giving written notice (the “Additional Commitment Notice”) to the Administrative Agent, request that, on the terms and subject Agent at least forty-five (45) days prior to the conditions contained date upon which the Borrowers shall desire such increase to become effective, and shall set forth (1) the requested amount of the additional commitment (the “Additional Commitment Amount”), which Additional Commitment Amount shall be in this Agreement, Qualified the minimum amount of $5,000,000 and an integral multiple of $1,000,000 in excess thereof and (2) such details with respect thereto as are reasonably requested by the Administrative Agent; provided that the Borrower Representative may not deliver more than two (2) Additional Lenders provide up Commitment Notices in any twelve (12) month period.
(b) The aggregate amount of the Lenders’ Commitments (without regard to any reduction thereof) after giving effect to the Additional Facilities Commitment Amount shall not exceed $300,000,000.
(c) Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the aggregate Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each, an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional Commitments; provided that portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond, in their sole and absolute discretion, to a request by the Administrative Agent pursuant to this clause (c) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower Representative of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrowers, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) no Default or and no Event of Default shall have occurred and be continuing being in existence before or would occur after giving effect to such additional Commitmentsincrease, (ii) the Loans under such additional Commitments shall have Accepting Lenders paying to the same Guaranties and Collateral Administrative Agent (if any), and shall rank pari passu with on behalf of the Loans other Lenders) the aggregate amount determined by the Administrative Agent to be made pursuant necessary so that each Accepting Lender’s pro rata share of outstanding Loans matches the ratio of its increased Commitment to Section 2.1A(i)the aggregate amount of all revised Commitments after giving effect to the Additional Commitment Amount, (iii) the representations Borrowers, the Accepting Lenders and warranties the Administrative Agent (on behalf of the Lenders) executing and delivering such other documents evidencing such adjustments in Section 5 the Commitments and the Loans as shall be true reasonably acceptable to the Borrowers, the Loan Parties, the Accepting Lenders and correct in all material respects prior to and after giving effect to such additional Commitmentsthe Administrative Agent, (iv) the maturity Borrowers paying, jointly and severally, an upsizing fee to the Accepting Lenders, in an amount to be determined at such time by the Borrower, the Administrative Agent and the Accepting Lenders in good faith and such fee to be paid on the date of any additional Commitments shall be no earlier thansuch increase, based upon the incremental upsized amount, and no scheduled mandatory commitment reduction shall to be required prior tonon-refundable once paid, the maturity date of the existing Commitments (or any Other Credit Extensions constituting Commitments), and (v) the terms Borrowers paying, jointly and severally, all of the Administrative Agent’s reasonable and documented out-of-pocket expenses as well as any negotiated Administrative Agent fee in connection with the foregoing.
(other than d) In the event that the Additional Commitment Amount is not achieved pursuant to paragraph (c) above, the Administrative Agent shall use commercially reasonable efforts, with respect the assistance of the Borrowers, to pricing or maturity) arrange for additional lenders with Commitments aggregating up to the Additional Commitment Amount. The Administrative Agent shall submit a list of additional proposed syndicate members to the Borrower Representative for its review and approval. If any such proposed lenders are so approved by the Borrower Representative, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any additional Commitments other Lenders, subject, however, to (i) no Default and no Event of Default being in existence at such time, (ii) such new Lenders paying to the Loans Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be made thereundernecessary so that each new Lender’s pro rata share of outstanding Loans matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iii) the Borrowers paying, jointly and severally, to the extent not consistent with Lenders the amounts payable, if any, to such Lenders pursuant to Section 2.16 as a result of the prepayment of any such Loans, (iv) the Borrowers, the new Lenders and the Administrative Agent (on behalf of the Lenders) executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and the Loans extended under this Agreement pursuant to Section 2.1A(i), as shall be reasonably acceptable to the Borrowers and the Administrative Agent, and (iv) the Borrowers paying, jointly and severally, all of the Administrative Agent’s reasonable and documented out-of-pocket expenses as well as any negotiated Administrative Agent fee in connection with the foregoing.
(e) No Additional Commitment Amount may be extended unless and until the Administrative Agent shall have received (i) an updated pipeline of Eligible Projects that the Borrowers plan to acquire, (ii) an updated financial model of the Borrowers giving effect to the acquisition of such Eligible Projects in the acquisition pipeline on a pro forma basis, (iii) the Borrower Representative providing to the Administrative Agent and the Lenders an updated feasibility study prepared or updated not more than two (2) months prior to the date of such Additional Commitment Notice, and including such Eligible Projects in the acquisition pipeline, which study evaluates the leasing market risk for such Eligible Projects, and (iv) evidence acceptable to the Administrative Agent in its reasonable discretion that such Eligible Projects in the acquisition pipeline have received all necessary Issuer approvals, TEFRA Approvals and all Form 8038 and Tax Certificates shall have been completed, executed and delivered, in each case in reasonable detail and in form and substance reasonably satisfactory to the Administrative Agent, .
(vif) such additional Commitments shall be made available no more than four times prior to the Commitment Termination Date, (vii) each such additional Commitment shall be in a minimum aggregate principal amount of $10,000,000, (viii) the minimum commitment of any Qualified Additional Lender shall be $2,500,000 and (ix) if the Initial Yield applicable to the additional Commitments extended pursuant to this Section 2.1A(ii) exceeds by more than 50 basis points the Revolving Loan Yield at such time (the amount by which the Initial Yield applicable to the additional Commitments incurred pursuant to this Section 2.1A(ii) exceeds the Revolving Loan Yield at such time being referred to herein as the “Yield Differential”), then the “LIBO Rate floor” and/or the Applicable Margin applicable to the Loans shall be increased such that after giving effect to such increases, the Yield Differential shall equal 50 basis points; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBO Rate floor” being applicable to the additional Commitments, the “LIBO Rate floor” applicable to the Loans shall be increased (or, in the event there is no “LIBO Rate floor” applicable to the Loans at such time, a “LIBO Rate floor” shall be added) to an amount not to exceed the “LIBO Rate floor” applicable to the additional Commitments prior to any increase in the Applicable Margin applicable to the Loans. Nothing contained in this Section 2.1A(ii) or otherwise in this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion of any such additional Commitments. If and to the extent that any Qualified Additional Lenders agree, in their sole discretion, to provide any such additional Commitments on the terms and conditions set forth herein, (a) at such time and in such manner as the Administrative Agent shall reasonably determine, the Qualified Additional Lenders who have in their sole discretion agreed to provide additional Commitments shall purchase and assume outstanding Loans and/or participations incurred in connection with Letters of Credit so as to cause the amount of such Loans and/or participations in connection with Letters of Credit held by each Lender to conform to the respective percentages of the applicable Commitments of the Lenders as so adjusted and (b) the Borrower shall execute and deliver any additional Notes as any Lender may reasonably request or other amendments or modifications to this Agreement or any other Loan Document as the Administrative Agent may reasonably request. If any new Commitments incurred pursuant to this Section 2.1A(ii) are to have terms that are different from the Commitments outstanding immediately prior to such incurrence (any such new Commitments, “Other Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among Holdings, the Borrower, the Qualified Additional Lenders providing such additional Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Other Credit Extensions. If the Borrower incurs new Commitments under this Section 2.1A(ii), regardless of whether such Commitments are Other Credit Extensions, the Borrower shall, after such time, (x) incur and repay Loans ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence and (y) permanently reduce Commitments ratably as between the new Commitments and the Commitments outstanding immediately prior to such incurrence; provided that on the date of incurrence of the new Commitments, the Borrower may permanently reduce the Commitments outstanding immediately prior to such time without ratably reducing the new Commitments. Notwithstanding anything to the contrary contained in Section 10.5this Agreement or the other Loan Documents, each Lender hereby authorizes the Borrowers and the Administrative Agent is expressly permitted, without (on behalf of the consent Lenders) to enter into amendments and modifications of any Lender, to amend this Agreement and the other Loan Documents to the extent necessary to give effect to any increases pursuant to this Section 2.1A(ii) and mechanical and conforming changes necessary or advisable in connection therewith (including amendments to (1) implement reflect the requirements in adjustment of the preceding two sentences, (2) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section 2.1A(ii) and Loans outstanding immediately prior to any such incurrence and (3) implement ratable participation in Letters of Credit between the Other Credit Extensions consisting of Commitments and the Commitments outstanding immediately prior to any such incurrence)Loans contemplated by this Section.
Appears in 1 contract
Sources: Draw Down Note Purchase and Continuing Covenant Agreement (Sky Harbour Group Corp)