Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions: (i) each Subsequent Lender is an Eligible Assignee; (ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment; (iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment; (iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000; (v) no Event of Default exists; and (vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1). (b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 2 contracts
Sources: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)
Increase in Aggregate Commitment. (a) At any time after After the Closing Date of this AgreementRestatement Effective Date, in the Administrative Agent may in event that a Lender desires to increase its discretion (which discretion shall Commitment, or a bank or other entity that is not be arbitrarily or unreasonably exercised contrary a Lender desires to the request of Borrower become a Lender and provide an additional Commitment hereunder, and so long as no Default or Unmatured Default shall have occurred and be continuing and with the conditions set forth below are satisfied), without the prior written consent of Agent, the Lenders (except as specified in this Section 2.8), Borrower shall have the right from time to time at prior to the request of Borrower, Facility Termination Date upon not less than thirty (30) days’ prior written notice to Agent to increase the Aggregate Commitment by an aggregate amount of up to $50,000,000 (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditionsterms and conditions set forth herein, “Commitment Adjustment Event”); provided, that in no event shall the Aggregate Commitment be increased to an amount greater than $650,000,000; provided, further, that:
(i1) each Subsequent if the Borrower and a Lender is an Eligible Assignee;
(ii) except elect to increase such Lender’s Commitment, the Borrower and such Lender shall execute and deliver to the extent Borrower elects to designate all or Agent a portion of such increase certificate substantially in the Aggregate form of Exhibit I attached hereto (a “Commitment as a Term Facility as described in Section 2.8(b) belowIncrease Certificate”, and the Borrower executes (A) shall deliver a new Line Note payable to the order of a Subsequent such Lender in the principal amount equal to its Commitment after giving effect to such increase, and otherwise duly completed;
(2) if the Borrower elects to increase the Aggregate Commitment by causing a bank or financial institution that at such time is not a Lender to become a Lender (an “Additional Lender”), the Borrower and such Additional Lender shall execute and deliver to the Agent, a certificate substantially in the form of its CommitmentExhibit J hereto) (an “Additional Lender Certificate”), or (B) together with an Administrative Questionnaire as referred to in Exhibit G, and the Borrower shall deliver a replacement Line Note payable to the order of an Increasing such Additional Lender in a principal amount equal to its Commitment, and otherwise duly completed; provided that, any such Additional Lender shall be approved by the Agent (such approval not to be unreasonably withheld, conditioned or delayed) prior to such bank or financial institution becoming an Additional Lender hereunder.
(3) subject to acceptance and recording thereof pursuant to this subsection (ii) hereof, from and after the effective date specified in the Commitment Increase Certificate or the Additional Lender Certificate, as applicable (or if any Eurodollar Advance is outstanding, then on the last day of the Interest Period in respect of such Eurodollar Advance, unless the Borrower has paid compensation required with respect to such Eurodollar Advance): (a) the amount of its new, increased the Aggregate Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing the Commitment, shall be increased by the amount set forth therein, and (b) in the case of an Additional Lender executes and delivers to the Administrative Agent Certificate, any Additional Lender party thereto shall be a new signature page party to this Agreement reflecting and the other Loan Documents and have the rights and obligations of a Lender under this Agreement and the other Loan Documents. In addition, the Lender party to the Commitment Increase Certificate or Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Loans (and participation interests in Letters of Credit) of each of the other lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Lender (including any Additional Lender, if applicable) shall hold its increased Commitment;
respective percentage of the outstanding Loans (ivand participation interests) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default existsCommitment; and
(vi4) no upon its receipt of a duly completed Commitment Increase Certificate or an Additional Lender shall be an Increasing Lender without Certificate, as applicable, executed by the written consent of such Lender, which consent such Lender may withhold in its sole Borrower and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Additional Lender party thereto, as applicable, and, with respect to an Additional Lender, the Administrative Questionnaire referred to in Exhibit G, the Agent shall promptly provide to each accept such Commitment Increase Certificate or Additional Lender Certificate and to Borrower copies of record the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be information contained therein in the form of a revised Schedule 1.1Register maintained by the Agent pursuant to Section 12.3(d).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any . No increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion shall be effective for purposes of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility this Agreement unless it has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase recorded in the Aggregate Commitment under Register as provided in this Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment12.3(d).
Appears in 2 contracts
Sources: Credit Agreement (USA Compression Partners, LP), Credit Agreement
Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, Harley may request that the Aggregate Commitment be increased; provided that, (A) the Aggregate Commitment shall at no time exceed $1,000,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by Harley not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by Harley in the Commitment Increase Notice, the Global Administrative Agent may in its discretion and the Arrangers shall have the right, with the consent of Harley, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (which discretion shall not be arbitrarily or unreasonably exercised contrary 3) Business Days prior to the request proposed effective date of Borrower so long as the conditions set forth below are satisfied)requested increase, without Harley may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If Harley shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then Harley shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify Harley and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) Harley, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit E hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantors shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to Harley. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify Harley of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers Harley may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise Harley and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the aggregate principal amount of its Syndicated Global Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. Harley hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurodollar Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 2 contracts
Sources: Credit Agreement (Harley Davidson Inc), 364 Day Credit Agreement (Harley Davidson Inc)
Increase in Aggregate Commitment. So long as no Default or Event of Default shall have occurred and be continuing, Borrower shall have the right from time to time upon prior written notice to Administrative Agent to increase the Revolving Commitment or the Term Facility; provided, that in no event shall (ai) At the aggregate Revolving Commitment and Term Loan Commitment Amounts be increased to an amount greater than $900,000,000, and (ii) the aggregate Term Loan Commitment Amounts exceed the maximum amount of the Term Facility; provided, further, that:
(1) Any increase in the Revolving Commitment which is accomplished by increasing the Revolving Loan Commitment Amount of any Revolving Lender or Revolving Lenders who are at the time after of such increase party to this Agreement (which increase shall be subject to the Closing Date consent of such Revolving Lender or Revolving Lenders shall consent to such increase in their sole and absolute discretion) shall be subject to the following terms: (i) this AgreementAgreement will be amended by Borrower, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily and those Revolving Lender(s) whose Commitment(s) is or unreasonably exercised contrary are being increased to reflect the request revised Revolving Loan Commitment Amounts of Borrower so long as the conditions set forth below are satisfied)each such Revolving Lender, without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing Administrative Agent will deliver an updated Schedule I to Borrower and each of the Revolving Lenders reflecting the revised Revolving Loan Commitment Amount and Revolving Loan Percentage of each of the Revolving Lenders, (iii) the Advances under the Revolving Credit Facility will be reallocated on the effective date of such increase among the Revolving Lenders in accordance with their revised Revolving Loan Percentages (and Borrower shall pay any Lender (each an “Increasing Lender”and all costs required pursuant to Section 3.6 in connection with such reallocation as if such reallocation were a prepayment), and (iv) Borrower will deliver new Revolving Note(s) to the Revolving Lender or Revolving Lenders whose Revolving Loan Commitment Amount(s) is or are being increased reflecting the revised Revolving Loan Commitment Amount of such Revolving Lender(s).
(2) Any increase in the Revolving Commitment which is accomplished by addition of a new Revolving Lender under this Agreement shall be subject to the following conditions:
terms: (i) each Subsequent such new Revolving Lender is shall be an Eligible Assignee;
Assignee and shall be subject to the consent of Administrative Agent and, prior to the occurrence and during the continuance of a Default, Borrower , which consent shall not be unreasonably withheld, (ii) except this Agreement will be amended by Borrower, the Administrative Agent and by the party becoming an additional Revolving Lender hereunder to reflect the addition of such party as a Lender hereunder, (iii) Administrative Agent will deliver an updated Schedule I to Borrower and each of the Lenders, reflecting the revised Revolving Loan Commitment Amount and Revolving Loan Percentage of each of the Revolving Lenders, (iv) the outstanding Advances under the Revolving Credit Facility will be reallocated on the effective date of such increase among the Revolving Lenders in accordance with their revised Revolving Loan Percentages (and Borrower shall pay any and all costs required pursuant to Section 3.6 in connection with such reallocation as if such reallocation were a prepayment), and (v) Borrower will deliver a Revolving Note to such party.
(3) Any increase in the Revolving Commitment pursuant to this Section 2.1 shall be prorated between the Short Term Revolving Facility and Long Term Revolving Facility in a manner which will cause the Revolving Commitments under each such facility (in the aggregate and for each Revolving Lender) to retain the same percentage relationship as existed immediately prior to such increase.
(4) Any increase in the Term Facility which is accomplished by addition of a new Term Lender under this Agreement shall be subject to the extent following terms: (i) such new Term Lender shall be an Eligible Assignee and shall be subject to the consent of Administrative Agent and, prior to the occurrence and during the continuance of a Default, Borrower elects , which consent shall not be unreasonably withheld, (ii) this Agreement will be amended by Borrower, the Administrative Agent and by the party becoming an additional Term Lender hereunder to designate all reflect the addition of such party as a Lender hereunder, (iii) Administrative Agent will deliver an updated Schedule I to Borrower and each of the Lenders, reflecting the revised Term Loan Commitment Amount and Term Loan Percentage of each of the Term Lenders, and (iv) Borrower will deliver a Term Note to such party.
(5) Any increase in the Term Facility which is accomplished by increasing the Term Loan Commitment Amount of any Term Lender or a portion Term Lenders who are at the time of such increase party to this Agreement (which increase shall be subject to the consent of such Term Lender or Term Lenders in their sole and absolute discretion) shall be subject to the following terms: (i) this Agreement will be amended by Borrower, the Administrative Agent and those Term Lender(s) whose Commitment(s) is or are being increased to reflect the revised Term Loan Commitment Amounts of each such Term Lender, (ii) Administrative Agent will deliver an updated Schedule I to Borrower and each of the Lenders reflecting the revised Term Loan Commitment Amount and Term Loan Percentage of each of the Term Lenders, and (iii) Borrower will deliver new Term Note(s) to the Term Lender or Term Lenders whose Term Loan Commitment Amount(s) is or are being increased reflecting the revised Term Loan Commitment Amount of such Term Lender(s).
(6) Borrower shall pay an administrative fee to Administrative Agent in connection with any such increase in the Aggregate Revolving Loan Commitment as a Amount and/or the Term Facility as described Loan Commitment Amount, in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to accordance with the order terms of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes separate letter agreement between Borrower and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Agent.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Amresco Inc), Credit Agreement (Amresco Inc)
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, Upon notice to the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to promptly notify the request of Borrower so long as Lenders identified by the conditions set forth below are satisfiedBorrower), without the consent of the Lenders (except as specified in this Section 2.8), Borrower may from time to time at during the term of this Agreement request of Borrower, an increase in the Aggregate Commitment by to an amount not exceeding $700,000,000 (after giving effect to any such increase) at any time; provided that (i) admitting additional Lenders hereunder (each any such request for an increase shall be in a “Subsequent Lender”), minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (ii) increasing immediately before and after giving effect to such increase in the Commitment Aggregate Commitment, no Default or Event of any Lender Default shall have occurred and be continuing and (each an “Increasing Lender”), subject iii) after giving to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as (including any Borrowings to be made on the Increase Effective Date), the Parent shall be in compliance on a Term Facility as described pro forma basis with the financial covenants set forth in Section 2.8(b7.02. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) below, Borrower executes shall specify the time period within which each applicable Lender is requested to respond (A) a new Line Note payable which shall in no event be less than ten Business Days from the date of delivery of such notice to the order Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees, in its sole discretion, to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made hereunder. To achieve the full amount of a Subsequent Lender requested increase, the Borrower may also invite additional Eligible Assignees (including prior to, and in the amount of its Commitmentlieu of, or (Binviting Lenders) to become Lenders pursuant to a replacement Line Note payable to the order of an Increasing Lender joinder agreement in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes form and delivers substance satisfactory to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)counsel.
(b) If the Aggregate Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower mayshall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, at its optionthe Borrower shall have provided to the Administrative Agent the following, elect in form and substance reasonably satisfactory to designate allthe Administrative Agent:
(i) copies of corporate resolutions certified by a Responsible Officer of the Borrower, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitment as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date, has been duly authorized by all necessary corporate action, together with, upon request of the Administrative Agent, an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) to such effect and as to such other customary matters regarding the transactions contemplated by this Section 2.15 as the Administrative Agent may reasonably request, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the General Partner, on behalf of the Parent and a Responsible Officer of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, (or, if such representation speaks as of an earlier date, as of such earlier date), (B) no Default or Event of Default exists and (C) the Parent is in compliance, on a pro forma basis, with the financial covenants set forth in Section 7.02 hereof.
(c) The Borrower shall prepay any portion of at least $50,000,000, of Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Aggregate Commitment under this Section.
(d) This Section 2.8(a) as the Term Facility (shall supersede any provisions in Sections 2.12 or any portion of at least $10,000,000 with respect to any subsequent increase 10.01 to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentcontrary.
Appears in 2 contracts
Sources: Credit Agreement (Noble Midstream Partners LP), Credit Agreement (Noble Midstream Partners LP)
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this AgreementIf no Default shall have occurred and be continuing at such time, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower may, if it so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrowerelects, increase the Aggregate Commitment hereunder, either by designating a Person not theretofore a Lender and acceptable to the Agent to become a Lender or by agreeing with an existing Lender that such Lender's Commitment shall be increased. Upon execution and delivery by the Borrower and such Lender or other Person of an instrument of assumption in form and amount reasonably satisfactory to the Agent, such existing Lender shall have a Commitment as therein set forth or such other Person shall become a Lender with a Commitment as therein set forth and all the rights and obligations of the Lender with such a Commitment hereunder; provided that (i) admitting additional Lenders hereunder (each a “Subsequent Lender”)the Borrower shall provide prompt notice of such increase to the Agent, or which shall promptly notify the other Lenders, (ii) increasing the aggregate amount of each such increase which is effective on any day shall be at least $5,000,000, (iii) the Aggregate Commitment of shall at no time exceed $125,000,000, (iv) the Agent shall have consented in writing, (v) not more than 2 Aggregate Commitment increases may be issued in any calendar year, and (vi) a Person becoming a Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all with a Commitment or a portion Lender increasing its Commitment, as appropriate, shall have received any required customary closing conditions, including, without limitation, the Borrower's authorizing resolutions and opinions of such counsel. Any request received by the Agent from the Borrower to increase the Aggregate Commitment shall be delivered to each Lender and shall be implemented by one or more existing Lenders agreeing to increase their Commitments or by a Person agreeing to become a Lender with a Commitment; provided that no Lender shall have any obligation to increase its Commitment but each Lender shall have the right to elect to increase its Commitment in its sole discretion pro rata with any other one or more Persons agreeing to become a Lender hereunder or by any combination of the foregoing, as determined by the Agent in consultation with the Borrower. An increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable and any amendments to the order of a Subsequent Lender in Credit Agreement to evidence such increase shall not require the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission consent of any Subsequent Lender or the increase not participating in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)increase.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Kimball International Inc), Credit Agreement (Kimball International Inc)
Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, Harley may request that the Aggregate Commitment be increased; provided that, (A) the Aggregate Commitment shall at no time exceed $1,000,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by Harley not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by Harley in the Commitment Increase Notice, the Global Administrative Agent may in its discretion and the Arrangers shall have the right, with the consent of Harley, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (which discretion shall not be arbitrarily or unreasonably exercised contrary 3) Business Days prior to the request proposed effective date of Borrower so long as the conditions set forth below are satisfied)requested increase, without Harley may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If Harley shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then Harley shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify Harley and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) Harley, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit F hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantors shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to Harley. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify Harley of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers Harley may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise Harley and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the sum of (i) the aggregate principal amount of its Syndicated Global Loans outstanding at such time, plus (ii) an amount equal to its actual participation interest of its Pro Rata Share of the aggregate principal amount of Swing Line Loans and Syndicated Canadian Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. Harley hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurocurrency Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 2 contracts
Sources: Credit Agreement (Harley Davidson Inc), Credit Agreement (Harley Davidson Inc)
Increase in Aggregate Commitment. (a) At So long as no Default or Event of Default shall have occurred and be continuing, at any time after prior to the Closing Date of this AgreementTermination Date, the Administrative Agent may in its discretion (which discretion Borrower shall not be arbitrarily or unreasonably exercised contrary to have the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), right from time to time at upon not less than thirty (30) days prior written notice to the request of Borrower, Administrative Agent to increase the Aggregate Commitment; provided, that in no event shall the Aggregate Commitment be increased to an amount greater than $200,000,000; provided, further, that:
(a) Any increase in the Aggregate Commitment which is accomplished by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender or Lenders who are at the time of such increase party to this Agreement (each an “Increasing Lender”), subject which Lender or Lenders shall consent to the following conditions:
such increase in their sole and absolute discretion) shall be accomplished as follows: (i) this Agreement will be amended by the Borrower, the Administrative Agent and those Lender(s) whose Commitment(s) is or are being increased (but without any requirement that the consent of the Required Lenders be obtained) to reflect the revised Commitment amounts of each Subsequent Lender is an Eligible Assignee;
of the Lenders, (ii) except the Administrative Agent will deliver an updated Schedule 1.1
(a) to the extent Borrower elects to designate all or a portion Borrower, the Issuing Lender and each of the Lenders reflecting the revised Commitment amount and Commitment Percentage of each of the Lenders, (iii) the outstanding Loans and Commitment Percentages of L/C Obligations will be reallocated on the effective date of such increase among the Lenders in accordance with their revised Commitment Percentages (and the Lenders agree to make all payments and adjustments necessary to effect the reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a prepayment) and (iv) the Borrower will deliver new Note(s) to the Lender or Lenders whose Commitment(s) is or are being increased reflecting the revised Commitment amount of such Lender(s); and
(b) Any increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) which is accomplished by addition of a new Line Note payable to Lender under the order of a Subsequent Lender in the amount of its Commitment, or Agreement shall be accomplished as follows: (Bi) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a such new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without Eligible Assignee and shall be subject to the written consent of such Lenderthe Administrative Agent, which consent such Lender may withhold in its sole and absolute discretion. After shall not be unreasonably withheld, (ii) this Agreement will be amended by the admission of any Subsequent Lender or increase in the Commitment of any Increasing LenderBorrower, the Administrative Agent shall promptly provide to each and by the party becoming an additional Lender and to Borrower copies hereunder (but without any requirement that the consent of the signature pages Required Lenders be obtained) to reflect the addition of such Subsequent party as a Lender or Increasing Lenderhereunder, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(biii) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along will deliver an updated Schedule 1.1
(a) to the Borrower, the Issuing Lender and each of the Lenders reflecting the revised Commitment amounts and Commitment Percentages of each of the Lenders, (iv) the outstanding Loans and Commitment Percentages of L/C Obligations will be reallocated on the effective date of such increase among the Lenders in accordance with Borrower’s request for an increase their revised Commitment Percentages (and the Lenders agree to make all payments and adjustments necessary to effect the reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in the Aggregate Commitment under Section 2.8(aconnection with such reallocation as if such reallocation were a prepayment) and must specify (v) the portion of the increase Borrower desires will deliver a Note to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentparty.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At (i) any time that is not an Investment Grade Period, if the Borrowing Base exceeds the Aggregate Commitment, or (ii) any time during an Investment Grade Period, the Borrower may, by written notice to the Administrative Agent, request one or more increases in the Aggregate Commitment (an “Incremental Commitment”); provided that (i) at any time that is not an Investment Grade Period, no Incremental Commitment shall exceed an amount equal to the Borrowing Base at the time of such request minus the Aggregate Commitment (prior to giving effect to such Incremental Commitment) at such time, (ii) no such Incremental Commitment shall be permitted if after giving effect thereto, the Aggregate Commitment would exceed the Maximum Aggregate Amount, and (iii) the total amount of each Incremental Commitment shall be in a minimum principal amount of $10,000,000 (unless, at any time that is not an Investment Grade Period, prior to giving effect to such increase, the Borrowing Base exceeds the Aggregate Commitment by less than $10,000,000 and after giving effect to such increase, the Aggregate Commitment will equal the Borrowing Base). Each such notice shall specify the date (each, an “Increase Date”) on which the Borrower proposes that any Incremental Commitment shall be effective, which shall be a date not less than five (5) Business Days after the Closing Date date on which such notice is delivered to Administrative Agent. The Borrower may invite (x) any Lender, any Affiliate of any Lender and/or any Approved Fund (an “Increase Lender”), and/or (y) any other Person (other than an Affiliate of the Borrower) reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender to provide an Incremental Commitment (any such Person, an “Additional Lender”). Any Increase Lender or any Additional Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any Incremental Commitment shall become effective as of such Increase Date; provided that:
(i) the Borrower may not, during any period that is not an Investment Grade Period, request more than one increase in the Aggregate Commitment between Scheduled Redetermination dates, it being understood that an increase in the Aggregate Commitment may also be requested on any Scheduled Redetermination date (for the sake of clarity, all increases in the Aggregate Commitment effective on a single day shall be deemed a single increase in the Aggregate Commitment for purposes of this Agreement, subsection);
(ii) no Default or Event of Default shall exist on such Increase Date before or after giving effect to any Incremental Commitment and the Administrative Agent making of any Loans pursuant thereto;
(iii) no Lender’s Commitment may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), increased without the consent of such Lender;
(iv) all of the Lenders terms and conditions applicable to such Incremental Commitments (except and the Loans made pursuant thereto) shall be identical to the terms and conditions applicable to Commitments and Loans under this Agreement (other than with respect to any arrangement, structuring, upfront or other fees or discounts payable in connection with such Incremental Commitment as specified in this Section 2.8may have been agreed to between the Borrower and the Increase Lender or Additional Lender, as applicable, and/or the Administrative Agent), from time ;
(v) if the Borrower elects to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any one or more Increase Lenders, the Borrower and each such Increase Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes shall execute and delivers deliver to the Administrative Agent a signature page certificate substantially in the form of Exhibit J (a “Commitment Increase Certificate”) and the Borrower shall pay any applicable fees as may have been agreed to between the Borrower and such Increase Lender and/or the Administrative Agent;
(vi) if the Borrower elects to increase the Aggregate Commitment by causing one or more Additional Lenders to become a party to this Agreement, then the Borrower and each Increasing such Additional Lender executes shall execute and delivers deliver to the Administrative Agent a new signature page certificate substantially in the form of Exhibit K (an “Additional Lender Certificate”), together with an Administrative Questionnaire and a processing and recordation fee of $3,500 for each Additional Lender, which shall be payable by the Borrower to this Agreement reflecting the Administrative Agent unless waived by the Administrative Agent, and the Borrower shall (A) if requested by any Additional Lender, deliver a Note payable to such Additional Lender in a principal amount equal to its increased Commitment, and otherwise duly completed and (B) pay any applicable fees as may have been agreed to between the Borrower and any Additional Lender and/or the Administrative Agent;
(ivvii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Commitment) reasonably requested by Administrative Agent; and
(viii) after giving effect to the admission of Incremental Commitments, (A) the Aggregate Commitment shall be increased automatically on the Increase Date by the aggregate amount indicated in the Commitment Increase Certificates and/or Additional Lender Certificates, as applicable, without further action by the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Bank or any Subsequent Lender or Lender, (B) Annex I and the Register shall each be amended to reflect the increase in the Commitment of an Increase Lender or to add such Additional Lender’s Commitment, as applicable, and the Applicable Percentages of the Lenders shall be adjusted accordingly to reflect any Increasing Incremental Commitment of an Increase Lender and/or each Additional Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(vC) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide distribute to the Borrower, the Administrative Agent, the Swingline Lender, the Issuing Bank and each Lender such revised Annex I, (D) any such Additional Lender shall be deemed to be a party in all respects to this Agreement and any other Loan Documents to Borrower copies of which the signature pages of such Subsequent Lender or Increasing LenderLenders are a party and (E) the outstanding Revolving Loans, Swingline Loans and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may LC Exposure will be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made reallocated by written notice to the Administrative Agent given along with Borrower’s request for an increase in on the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, applicable Increase Date among the Lenders that will be providing and/or the Additional Lenders, as applicable, in accordance with their revised Applicable Percentages (and (x) the Lenders and/or Additional Lenders, as applicable, shall make all payments and adjustments necessary to effect such Term Commitments. reallocation, and (y) the Borrower shall execute pay any and all costs required pursuant to Section 5.02 in connection with such reallocation as if such reallocation were a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentrepayment).
Appears in 1 contract
Sources: Credit Agreement (Energen Corp)
Increase in Aggregate Commitment. 2.27.1 Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more increases (athe amount of any such increase being a “Commitment Increase”) At in the Aggregate Commitment which in the aggregate do not cause the Aggregate Commitment to exceed $1,250,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the date of delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (any such Lender that agrees to increase its Commitment hereunder, an “Increasing Lender”). Any Lender not responding within such time after period shall be deemed to have declined to increase its Commitment. No Lender’s Commitment amount shall be increased without the Closing Date consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders’ responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional assignees (in accordance with and subject to the restrictions contained in Section 12.1) to become Lenders (any such Lender, an “Additional Lender”). The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.
2.27.2 Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of (A) an agreement in form and substance satisfactory to the Administrative Agent signed by the Borrowers, each Increasing Lender and each Additional Lender, setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to become a party to this AgreementAgreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Loans to be made by each such Lender described in its discretion Section 2.27.3 below, if applicable, and (iii) receipt by the Administrative Agent of a certificate (the statements contained in which discretion shall not be arbitrarily true) of an Authorized Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or unreasonably exercised contrary consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct as of such earlier date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
2.27.3 Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the request Administrative Agent in the manner described in Section 2.2. The funds so provided by any such Lender shall be deemed to be a Revolving Loan made by such Lender on the date of Borrower so long as such Commitment Increase, an in an amount such that after giving effect to such Commitment Increase and the conditions set forth below are satisfied)Revolving Loans made on the date of such Commitment Increase, each Advance outstanding hereunder shall consist of Revolving Loans made by the Lenders ratably in accordance with each Lender’s Pro Rata Share. Also upon giving effect to any Commitment Increase, each Lender shall participate in any outstanding Facility LC’s (other than any Bank Guaranties) and Swing Line Loans ratably in accordance with its Pro Rata Share.
2.27.4 Notwithstanding any provision contained herein to the contrary, from and after the date of any Commitment Increase and the making of any Revolving Loans on such date pursuant to Section 2.27.3 above, all calculations and payments of interest on the Advances and payment of amounts owing with respect to other Outstanding Credit Exposure of each Lender shall take into account the actual Commitment of each Lender and the principal amount outstanding of each Revolving Loan made by such Lender during the relevant period of time.
2.27.5 The Aggregate Commitments may be increased in accordance with, and to the extent permitted by, this Section 2.27, without the consent of the requisite Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment otherwise required under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment8.2.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so So long as no Default or Event of Default shall have occurred and be continuing, Borrower shall have the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), right from time to time at the request of Borrower, upon prior written notice to Agent to increase the Aggregate Revolving Commitment by or the Term Facility; provided, that in no event shall (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or the aggregate Revolving Commitment and aggregate Term Loan Commitment Amounts be increased to an amount greater than $550,000,000 and (ii) the aggregate Term Loan Commitment Amounts exceed the maximum amount of the Term Facility; provided, further, that:
(1) Any increase in the Revolving Commitment which is accomplished by increasing the Revolving Loan Commitment Amount of any Revolving Lender or Revolving Lenders who are at the time of such increase party to this Agreement (each an “Increasing Lender”), which Revolving Lender or Revolving Lenders shall consent to such increase in their sole and absolute discretion) shall be subject to the following conditions:
terms: (i) this Agreement will be amended by Borrower, the Agent and those Revolving Lender(s) whose Commitment(s) is or are being increased to reflect the revised Revolving Loan Commitment Amounts of each Subsequent Lender is an Eligible Assignee;
such Revolving Lender, (ii) except Agent will deliver an updated Schedule I to Borrower and each of the extent Borrower elects to designate all or a portion Revolving Lenders reflecting the revised Revolving Loan Commitment Amounts and Revolving Loan Percentage of each of the Revolving Lenders, (iii) the Advances under the Revolving Credit Facility and Revolving Loan Percentages will be reallocated on the effective date of such increase among the Revolving Lenders in the Aggregate Commitment accordance with their revised Revolving Loan Percentages (and Borrower shall pay any and all costs required pursuant to Section 3.6 in connection with such reallocation as if such reallocation were a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreementprepayment), and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect Borrower will deliver new Revolving Note(s) to the admission of any Subsequent Revolving Lender or Revolving Lenders whose Revolving Loan Commitment Amount(s) is or are being increased reflecting the revised Revolving Loan Commitment Amount of such Revolving Lender(s).
(2) Any increase in the Revolving Commitment which is accomplished by addition of any Increasing Lender, a new Revolving Lender under this Agreement shall be subject to the Aggregate Commitment does not exceed $1,000,000,000;
following terms: (vi) no Event of Default exists; and
(vi) no such new Revolving Lender shall be an Increasing Lender without Eligible Assignee and shall be subject to the written consent of such LenderAgent and, prior to the occurrence and during the continuance of a Default, Borrower , which consent shall not be unreasonably withheld, (ii) this Agreement will be amended by Borrower, the Agent and the party becoming an additional Revolving Lender hereunder to reflect the addition of such party as a Lender may withhold hereunder, (iii) Agent will deliver an updated Schedule I to Borrower and each of the Lenders reflecting the revised Revolving Loan Commitment Amounts and Revolving Loan Percentages of each of the Revolving Lenders, (iv) the outstanding Advances under the Revolving Credit Facility and Revolving Loan Percentages will be reallocated on the effective date of such increase among the Revolving Lenders in its accordance with their revised Revolving Loan Percentages (and Borrower shall pay any and all costs required pursuant to Section 3.6 in connection with such reallocation as if such reallocation were a prepayment) and (v) Borrower will deliver a Revolving Note to such party.
(3) Any increase in the Term Facility which is accomplished by addition of a new Term Lender under this Agreement shall be subject to the following terms: (i) such new Term Lender shall be an Eligible Assignee and shall be subject to the consent of Agent and, prior to the occurrence and during the continuance of a Default, Borrower, which consent shall not be unreasonably withheld, (ii) this Agreement will be amended by Borrower, the Agent and the party becoming an additional Term Lender hereunder to reflect the addition of such party as a Lender hereunder, (iii) Agent will deliver an updated Schedule I to Borrower, and each of the Lenders reflecting the revised Term Loan Commitment Amounts and Term Loan Percentages of each of the Term Lenders, and (iv) Borrower will deliver a Term Note to such party.
(4) Any increase in the Term Facility which is accomplished by increasing the Term Loan Commitment Amount of any Term Lender or Term Lenders who are at the time of such increase party to this Agreement (which Term Lender or Term Lenders shall consent to such increase in their sole and absolute discretion. After ) shall be subject to the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lenderfollowing terms: (i) this Agreement will be amended by Borrower, the Administrative Agent shall promptly provide and those Term Lender(s) whose Commitment(s) is or are being increased to each Lender and to Borrower copies of reflect the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate revised Term Loan Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order Amounts of each such Subsequent Term Lender, (ii) Agent will deliver an updated Schedule I to Borrower and each of the Lenders reflecting the revised Term Loan Commitment Amounts and Term Loan Percentages of each of the Term Lenders, and (iii) Borrower will deliver new Term Note(s) to the Term Lender and Increasing Lender in or Term Lenders whose Term Loan Commitment Amount(s) is or are being increased reflecting the amount revised Term Loan Commitment Amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLender(s).
Appears in 1 contract
Sources: Loan Agreement (Amresco Inc)
Increase in Aggregate Commitment. (a) At any time after In the Closing Date event that a Lender desires to increase its Revolving Commitment, or a bank or other entity that is not a Lender desires to become a Lender and provide an additional Revolving Commitment hereunder, and so long as no Default or Event of this Agreement, Default shall have occurred and be continuing and with the prior written consent of Administrative Agent may in its discretion (which discretion shall not be arbitrarily unreasonably conditioned, withheld or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfieddelayed), without the consent of Borrower shall have the Lenders (except as specified in this Section 2.8), right from time to time at prior to the request of Borrower, Maturity Date upon not less than thirty (30) days’ prior written notice to Administrative Agent to increase the Aggregate Revolving Commitment by an aggregate amount of up to $20,000,000 (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditionsterms and conditions set forth herein, “Commitment Adjustment Event”); provided, that in no event shall the aggregate Commitment of all Lenders be increased to an amount greater than $60,000,000; provided, further, that:
(i) each Subsequent if the Borrower elects to increase the Revolving Commitment of a Lender, the Borrower and such Lender is an Eligible Assigneeshall execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit F attached hereto (a “Commitment Increase Certificate”);
(ii) except to the extent Borrower elects to designate all or a portion any such Revolving Commitment increase shall be in increments of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitmentno less than $10,000,000;
(iii) each Subsequent if the Borrower elects to increase the Revolving Commitment by causing a bank or financial institution that at such time is not a Lender executes to become a Lender (an “Additional Lender”), the Borrower and delivers such Additional Lender shall execute and deliver to the Administrative Agent Agent, a signature page to this Agreementcertificate substantially in the form of Exhibit G hereto) (an “Additional Lender Certificate”), and each Increasing together with an Administrative Questionnaire; provided that, any such Additional Lender executes and delivers to shall be approved by the Administrative Agent a new signature page (which approval shall not be unreasonably conditioned, withheld or delayed) prior to this Agreement reflecting its increased Commitmentsuch bank or financial institution becoming an Additional Lender hereunder;
(iv) subject to acceptance and recording thereof pursuant to this subsection (b) hereof, from and after the effective date specified in the Commitment Increase Certificate or the Additional Lender Certificate, as applicable (or if any Eurodollar Loan is outstanding, then on the last day of the Interest Period in respect of such Eurodollar Loan, unless the Borrower has paid compensation required with respect to such Eurodollar Loan): (a) the amount of the aggregate Revolving Commitment shall be increased by the amount set forth therein, and (b) in the case of an Additional Lender Certificate, any Additional Lender party thereto shall be a party to this Agreement and the other Loan Documents and have the rights and obligations of a Lender under this Agreement and the other Loan Documents. In addition, the Lender party to the Commitment Increase Certificate or Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Loans (and participation interests in Letters of Credit) of each of the other lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Lender (including any Additional Lender, if applicable) shall hold its respective percentage of the outstanding Loans (and participation interests) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000Revolving Commitment;
(v) no Event upon its receipt of Default existsa duly completed Commitment Increase Certificate or an Additional Lender Certificate, as applicable, executed by the Borrower and the Lender or the Additional Lender party thereto, as applicable, and, with respect to an Additional Lender, the Administrative Questionnaire, the Administrative Agent shall accept such Commitment Increase Certificate or Additional Lender Certificate and shall record the information contained therein in the Register. No increase in the Revolving Commitment shall be effective for purposes of this Agreement unless it has been recorded in the Register; and
(vi) no Lender Borrower shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies have accepted delivery of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Superior Achiever.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Increase in Aggregate Commitment. (a) At any time after Provided no Default or Unmatured Default exists, upon notice to the Closing Date of this AgreementAgent, the Administrative Parent may request one or more increases (the amount of any such increase being a “Commitment Increase”) in the Aggregate Commitment which in the aggregate do not exceed $100,000,000 and do not cause the Aggregate Commitment to exceed $300,000,000. The Agent may shall promptly give the Lenders (each of which, in its discretion sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Agent, the Parent shall specify the time period within which each Lender is requested to respond (which discretion shall not be arbitrarily or unreasonably exercised contrary less than 10 Business Days from the date of delivery of such notice to the request of Borrower so long as Agent). Each Lender shall notify the conditions set forth below are satisfied)Agent within such time period whether or not it agrees to increase its Commitment and, without the consent of the Lenders (except as specified in this Section 2.8)if so, from time to time at the request of Borrowerwhether by an amount equal to, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”)greater than, or less than its Pro Rata Share of such requested increase (ii) increasing the any such Lender that agrees to increase its Commitment of any Lender (each hereunder, an “Increasing Lender”). Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. No Lender’s Commitment amount shall be increased without the consent of such Lender. The Agent shall notify the Parent of the Lenders’ responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, subject the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the following conditions:
Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional Eligible Assignees to become Lenders (i) each Subsequent Lender is any such Lender, an Eligible Assignee;
(ii) except to “Additional Lender”). The sum of the extent Borrower elects to designate all or a portion of such increase increases in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to Commitments of the order Increasing Lenders plus the Commitments of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after Additional Lenders upon giving effect to the admission of any Subsequent Lender or the increase Commitment Increase shall not in the Commitment aggregate exceed the amount of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Increase.
(b) Borrower mayAny Commitment Increase shall become effective upon (i) the receipt by the Agent of (A) an agreement in form and substance satisfactory to the Agent signed by the Borrowers, at its optioneach Increasing Lender and each Additional Lender, elect setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to designate allbecome a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, or any portion and (B) such evidence of at least $50,000,000, appropriate authorization on the part of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 Borrowers with respect to any subsequent increase the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Aggregate Commitment after Increase as the Term Facility has been established)Agent may reasonably request, provided that (ii) the funding by each Subsequent Increasing Lender and Increasing Additional Lender providing of the Commitments so designated has agreed in writing Revolving Loans to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice each such Lender described in subsection (c) below, if applicable, and (iii) receipt by the Agent of a certificate (the statements contained in which shall be true) of a Responsible Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct as of such earlier date. The Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
(c) Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender manner described in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.Section
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, Upon notice to the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to promptly notify the request of Borrower so long as Lenders identified by the conditions set forth below are satisfiedBorrower), without the consent of the Lenders (except as specified in this Section 2.8), Borrower may from time to time at during the term of this Agreement request of Borrower, an increase in the Aggregate Commitment by to an amount not exceeding $500,000,000 (after giving effect to any such increase) at any time; provided that (i) admitting additional Lenders hereunder (each any such request for an increase shall be in a “Subsequent Lender”), minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (ii) increasing immediately before and after giving to such increase in the Commitment Aggregate Commitment, no Default or Event of any Lender Default shall have occurred and be continuing and (each an “Increasing Lender”), subject iii) after giving to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as (including any Borrowings to be made on the Increase Effective Date), the Borrower shall be in compliance on a Term Facility as described pro forma basis with the financial covenants set forth in Section 2.8(b7.02. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) below, Borrower executes shall specify the time period within which each applicable Lender is requested to respond (A) a new Line Note payable which shall in no event be less than ten Business Days from the date of delivery of such notice to the order Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees, in its sole discretion, to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made hereunder. To achieve the full amount of a Subsequent Lender requested increase, the Borrower may also invite additional Eligible Assignees (including prior to, and in the amount of its Commitmentlieu of, or (Binviting Lenders) to become Lenders pursuant to a replacement Line Note payable to the order of an Increasing Lender joinder agreement in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes form and delivers substance satisfactory to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)counsel.
(b) If the Aggregate Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower mayshall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, at its optionthe Borrower shall have provided to the Administrative Agent the following, elect in form and substance reasonably satisfactory to designate allthe Administrative Agent:
(i) copies of corporate resolutions certified by the Secretary or Assistant Secretary of the General Partner, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitment as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date, has been duly authorized by all necessary corporate action, together with, upon request of the Administrative Agent, an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) to such effect and as to such other customary matters regarding the transactions contemplated by this Section 2.15 as the Administrative Agent may reasonably request, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the General Partner, on behalf of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, (or, if such representation speaks as of an earlier date, as of such earlier date), (B) no Default or Event of Default exists and (C) the Borrower is in compliance, on a pro forma basis, with the financial covenants set forth in Section 7.02 hereof.
(c) The Borrower shall prepay any portion of at least $50,000,000, of Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Aggregate Commitment under this Section.
(d) This Section 2.8(a) as the Term Facility (shall supersede any provisions in Sections 2.12 or any portion of at least $10,000,000 with respect to any subsequent increase 10.01 to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentcontrary.
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Increase in Aggregate Commitment. (a) At any time after the Closing Date Provided that no Default or Event of this AgreementDefault has occurred and is continuing, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary subject to the request of Borrower so long as the terms and conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), the Borrower shall have the option subject to the Administrative Agent’s prior written consent (such consent to not be unreasonable withheld, conditioned or delayed) at any time and from time to time at before the Revolving Credit Maturity Date or Term Loans Maturity Date, as applicable, to request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Revolving Credit Commitment as a and/or the Aggregate Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the Commitment by an aggregate amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, $250,000,000.00 such that the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender760,000,000.00, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by giving written notice to the Administrative Agent given along with (an “Increase Notice”; and the amount of such requested increase is the “Commitment Increase”), provided that any such individual increase must be in a minimum amount of $10,000,000.00 and an integral multiple of $5,000,000.00 in excess thereof, unless otherwise approved by the Administrative Agent. The Administrative Agent shall send a notice to all Lenders (the “Additional Commitment Request Notice”) informing them of the Borrower’s request for to increase the Aggregate Commitment. Each Lender who desires to provide an additional Commitment shall provide the Administrative Agent with a written commitment letter specifying the amount of the additional Commitment which it is willing to provide prior to such deadline as may be specified in the Additional Commitment Request Notice. If the requested increase is oversubscribed then the Administrative Agent and the Arranger shall allocate the Commitment Increase among the Lenders who provide such commitment letters on such basis as the Administrative Agent, the Arranger and the Borrower shall mutually agree. If the additional Commitments so provided are not sufficient to provide the full amount of the Commitment Increase requested by the Borrower, then the Administrative Agent, Arranger or the Borrower may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be reasonably acceptable to the Administrative Agent, the Arranger and the Borrower) to become a Lender and provide an additional Commitment which Lender shall be approved by all of the Administrative Agent, the Arranger and the Borrower. The Administrative Agent shall provide all Lenders with a notice setting forth the amount, if any, of the additional Commitment to be provided by each Lender and the revised Commitment Percentages which shall be applicable after the effective date of the Commitment Increase specified therein (the “Commitment Increase Date”). In no event shall any Lender be obligated to provide an additional Commitment.
(b) On any Commitment Increase Date on which the Aggregate Revolving Credit Commitment is increased, the Outstanding principal balance of the Revolving Credit Loans shall be reallocated among the Revolving Credit Lenders such that after the applicable Commitment Increase Date the Outstanding principal amount of Revolving Credit Loans owed to each Revolving Credit Lender shall be equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage (as in effect after the applicable Commitment Increase Date) of the Outstanding principal amount of all Revolving Credit Loans. The participation interests of the Revolving Credit Lenders in Letters of Credit and Swingline Loans shall be similarly adjusted. On any Commitment Increase Date on which the Aggregate Revolving Credit Commitment is increased, those Revolving Credit Lenders whose Revolving Credit Commitment Percentage is increasing shall advance the funds to the Administrative Agent and the funds so advanced shall be distributed among the Revolving Credit Lenders whose Revolving Credit Commitment Percentage is decreasing as necessary to accomplish the required reallocation of the Outstanding Revolving Credit Loans. The funds so advanced shall be Revolving Credit Floating Rate Loans until converted to Revolving Credit LIBOR Rate Loans which are allocated among all Revolving Credit Lenders based on their Revolving Credit Commitment Percentages.
(c) Upon the effective date of each increase in the Aggregate Commitment under pursuant to this Section 2.8(a) 2.8 the Administrative Agent may unilaterally revise Schedule 1.1 and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable and deliver to the order of Administrative Agent new Revolving Credit Notes or Term Loan Notes, as applicable, for each such Subsequent Lender and Increasing Lender in whose Commitment has changed so that the principal amount of such Term Lender’s Percentage Revolving Credit Note or Term Loan Note shall equal its Revolving Credit Commitment or Term Loan Commitment, as applicable. The Administrative Agent shall deliver such replacement Revolving Credit Note or Term Loan Notes, as applicable, to the respective Lenders in exchange for the Revolving Credit Notes or Term Loan Notes replaced thereby which shall be surrendered by such Lenders. Such new Revolving Credit Notes or Term Loan Notes, as applicable, shall provide that they are replacements for the surrendered Revolving Credit Notes or Term Loan Notes, as applicable, and that they do not constitute a novation, shall be dated as of the Commitment Increase Date and shall otherwise be in substantially the form of the replaced Revolving Credit Notes or Term Loan Notes, as applicable. The surrendered Revolving Credit Notes or Term Loan Notes, as applicable, shall be canceled and returned to the Borrower.
(d) Notwithstanding anything to the contrary contained herein, the obligation of the Administrative Agent and the Lenders to increase the Aggregate Commitment pursuant to this Section 2.8 shall be conditioned upon satisfaction of the following conditions precedent which must be satisfied prior to the effectiveness of any increase of the Aggregate Term Commitment.:
Appears in 1 contract
Increase in Aggregate Commitment. 2.27.1. Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more, but not more than five, increases (athe amount of any such increase being a “Commitment Increase”) At in the Aggregate Commitment which shall be in an amount not less than $25,000,000 and which in the aggregate do not cause the Aggregate Commitment to exceed $1,000,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the date of delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (any such Lender that agrees to increase its Commitment hereunder, an “Increasing Lender”). Any Lender not responding within such time after period shall be deemed to have declined to increase its Commitment. No Lender’s Commitment amount shall be increased without the Closing Date consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders’ responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional lenders (in accordance with and subject to the consent and other restrictions applicable to assignees of Lenders contained in Section 12.1) to become Lenders (any such Lender, an “Additional Lender”). The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.
2.27.2. Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the Administrative Agent signed by the Borrowers, each Increasing Lender and each Additional Lender, setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to become a party to this AgreementAgreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Loans to be made by each such Lender described in its discretion Section 2.27.3 below, if applicable, and (iii) receipt by the Administrative Agent of a certificate (the statements contained in which discretion shall not be arbitrarily true) of an Authorized Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or unreasonably exercised contrary consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct in all material respects as of such earlier date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
2.27.3. Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the request Administrative Agent in the manner described in Section 2.11. The funds so provided by any such Lender shall be deemed to be a Revolving Loan made by such Lender on the date of Borrower so long as such Commitment Increase, an in an amount such that, after giving effect to such Commitment Increase and the conditions set forth below are satisfied)Revolving Loans made on the date of such Commitment Increase, each Advance outstanding hereunder shall consist of Revolving Loans made by the Lenders ratably in accordance with each Lender’s Pro Rata Share. Also upon giving effect to any Commitment Increase, each Lender shall participate in any outstanding Facility LCs and Swing Line Loans ratably in accordance with its Pro Rata Share.
2.27.4. Notwithstanding any provision contained herein to the contrary, from and after the date of any Commitment Increase and the making of any Revolving Loans on such date pursuant to Section 2.27.3 above, all calculations and payments of interest on the Advances and payment of amounts owing with respect to other Outstanding Credit Exposure of each Lender shall take into account the actual Commitment of each Lender and the principal amount outstanding of each Revolving Loan made by such Lender during the relevant period of time.
2.27.5. The Aggregate Commitments may be increased in accordance with, and to the extent permitted by, this Section 2.27, without the consent of the requisite Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment otherwise required under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment8.2.
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Increase in Aggregate Commitment. (a) At any time after The Borrower shall also have the Closing Date of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), right from time to time at the request of Borrower, to increase the Aggregate Commitment up to a maximum of $250,000,000 by either adding new lenders as Lenders (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(iAgent's prior written approval of the identity of such new lenders) or obtaining the agreement, which shall be at such Lender's or Lenders' sole discretion, of one or more of the then current Lenders to increase its or their Commitments. The Arranger shall use commercially reasonable efforts to arrange such increased Commitments. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit I attached hereto by the Borrower, the Agent and the new lender or existing Lender providing such additional Commitment, a copy of which shall be forwarded to each Subsequent Lender is an Eligible Assignee;
(ii) except to by the extent Borrower elects to designate all or a portion Agent promptly after execution thereof. On the effective date of each such increase in the Aggregate Commitment as Commitment, the Borrower and the Agent shall cause the new or existing Lenders providing such increase, by either funding more than its or their Pro Rata Share of new Ratable Advances made on such date or purchasing shares of outstanding ratable Loans held by the other Lenders or a Term Facility as described in Section 2.8(b) belowcombination thereof, to hold its or their Pro Rata Share of all Ratable Advances outstanding at the close of business on such day (provided that any purchase of shares of outstanding Ratable Advances shall be subject to payment by Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount that would have been due under Section 3.4 if the portion of its Commitment, such Ratable Advance purchased had been repaid). The Lenders agree to cooperate in any required sale and purchase of outstanding Ratable Advances to achieve such result. In no event will such new or (B) existing Lenders providing the increase be required to fund or purchase a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission portion of any Subsequent Lender Competitive Bid Loan or the increase in the Commitment of any Increasing Lender, Swingline Loan to comply with this Section on such date. In no event shall the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender 250,000,000 without the written consent approval of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies all of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Lenders.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 1 contract
Sources: Credit Agreement (Amli Residential Properties Trust)
Increase in Aggregate Commitment. (ai) At any time after the Closing Date of this AgreementBorrower's option, during the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied)Syndication Period, without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment shall be increased by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment $5,000,000 prior to any transfer by any Original Lender of any interest of such Original Lender under this Agreement pursuant to Section 12.2 or 12.3; provided that (each an “Increasing x) no Lender shall have any obligation to increase its Commitment pursuant to this Section 2.10(c) and (y) without the prior written consent of all of the Lenders, the Aggregate Commitment shall at no time exceed $500,000,000. Based on notification to the Agent from the Arrangers of any new Commitment from one or more financial institutions that shall have agreed to become a Lender party hereto (a "New Lender”)") to provide a Commitment in support of such increase in the Aggregate Commitment, the Agent shall notify the Borrower and the Lenders at least four Business Days prior to the proposed effective date of such increase. Any increase in the Aggregate Commitment shall be subject to the following conditions:
conditions precedent: (iA) as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (B) the Borrower, the Agent and each Subsequent New Lender is an Eligible Assignee;
(ii) except that shall have agreed to the extent Borrower elects to designate all or provide a portion Commitment in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate "Commitment and related Percentage of each Lender (which may be Acceptance" substantially in the form of Exhibit I hereto (a revised Schedule 1.1"Commitment and Acceptance"), (C) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (D) the Borrower and such New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. Upon satisfaction of such conditions precedent to any increase in the Aggregate Commitment, the Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment, such New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder.
(bii) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, On the effective date of any increase in the Aggregate Commitment under Section 2.8(apursuant to clause (i) as above, each New Lender shall make available to the Term Facility Agent by 12:00 noon (Chicago time) in immediately available funds an amount equal to its ratable share (in accordance with its Commitment (or any portion the increased amount thereof) after giving effect to such increase in the Aggregate Commitment) of at least $10,000,000 with respect to any subsequent increase the aggregate principal amount of the outstanding Syndicated Advances on such date, and the Agent, upon receipt of such funds, shall promptly deliver such funds ratably to the Aggregate Commitment other Lenders, in same day funds, such that, after the Term Facility has been established), provided that each Subsequent Lender giving effect to such transfers and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative increase in the Aggregate Commitment, the outstanding Syndicated Advances on such effective date shall be held by the Lenders (including each New Lender) pro rata in accordance with their respective Commitments. The Agent given along shall give each New Lender reasonable notice of the amount of its required funding on such effective date. In connection with Borrower’s request for an the foregoing reallocation of the outstanding Syndicated Advances, if Eurodollar Advances are outstanding, the Borrower shall be deemed to have repaid all outstanding Eurodollar Advances as of the effective date of such increase in the Aggregate Commitment under and reborrowed such amount as a Floating Rate Advance and/or Eurodollar Advance (chosen in accordance with the provisions of Section 2.8(a) 2.3), and must specify the portion indemnification provisions of Section 3.4 shall apply to such reallocation; provided that the Agent shall use reasonable efforts to cause the effective date of such increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount Aggregate Commitment to be the last day of such Term Lender’s Percentage of the Aggregate Term Commitmenta Eurodollar Interest Period.
Appears in 1 contract
Sources: Credit Agreement (Omnicare Inc)
Increase in Aggregate Commitment. 2.27.1 Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more increases (athe amount of any such increase being a “Commitment Increase”) At in the Aggregate Commitment which in the aggregate do not cause the Aggregate Commitment to exceed $1,250,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the date of delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (any such Lender that agrees to increase its Commitment hereunder, an “Increasing Lender”). Any Lender not responding within such time after period shall be deemed to have declined to increase its Commitment. No Lender’s Commitment amount shall be increased without the Closing Date consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders’ responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the effective date of such Commitment Increase. To achieve the full amount of a requested increase, the Borrowers may also invite additional assignees (in accordance with and subject to the restrictions contained in Section 12.1) to become Lenders (any such Lender, an “Additional Lender”). The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders with respect to the Commitment Increase upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.
2.27.2 Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the Administrative Agent signed by the Borrowers, each Increasing Lender and each Additional Lender, setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to become a party to this AgreementAgreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Loans to be made by each such Lender described in its discretion Section 2.27.3 below, if applicable, and (iii) receipt by the Administrative Agent of a certificate of an Authorized Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which discretion case they are true and correct in all material respects as of such earlier date. The Administrative Agent shall not be arbitrarily or unreasonably exercised contrary promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
2.27.3 Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the request Administrative Agent in the manner described in Section 2.11. The funds so provided by any such Lender shall be deemed to be a Revolving Loan made by such Lender on the date of Borrower so long as such Commitment Increase, in an amount such that, after giving effect to such Commitment Increase and the conditions set forth below are satisfied)Revolving Loans made on the date of such Commitment Increase, each Advance outstanding hereunder shall consist of Revolving Loans made by the Lenders ratably in accordance with each Lender’s Pro Rata Share. Also upon giving effect to any Commitment Increase, each Lender shall participate in any outstanding Facility LCs (other than any Bank Guaranties) and Swing Line Loans ratably in accordance with its Pro Rata Share.
2.27.4 Notwithstanding any provision contained herein to the contrary, from and after the date of any Commitment Increase and the making of any Revolving Loans on such date pursuant to Section 2.27.3 above, all calculations and payments of interest on the Advances and payment of amounts owing with respect to other Outstanding Credit Exposure of each Lender shall take into account the actual Commitment of each Lender and the principal amount outstanding of each Revolving Loan made by such Lender during the relevant period of time.
2.27.5 The Aggregate Commitments may be increased in accordance with, and to the extent permitted by, this Section 2.27, without the consent of the requisite Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment otherwise required under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment8.2.
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Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, Harley may request that the Aggregate Commitment be increased; provided that, (A) the Aggregate Commitment shall at no time exceed $1,000,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by Harley not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by Harley in the Commitment Increase Notice, the Global Administrative Agent may in its discretion and the Arrangers shall have the right, with the consent of Harley, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (which discretion shall not be arbitrarily or unreasonably exercised contrary 3) Business Days prior to the request proposed effective date of Borrower so long as the conditions set forth below are satisfied)requested increase, without Harley may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If Harley shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then Harley shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify Harley and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) Harley, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit E hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantor shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantor and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to Harley. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify Harley of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers Harley may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise Harley and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the aggregate principal amount of its Syndicated Global Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. Harley hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurodollar Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
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Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, Upon notice to the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to promptly notify the request of Borrower so long as Lenders identified by the conditions set forth below are satisfiedBorrower), without the consent of the Lenders (except as specified in this Section 2.8), Borrower may from time to time at during the term of this Agreement request of Borrower, an increase in the Aggregate Commitment by to an amount not exceeding $500,000,000 (after giving effect to any such increase) at any time; provided that (i) admitting additional Lenders hereunder (each any such request for an increase shall be in a “Subsequent Lender”), minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (ii) increasing immediately before and after giving effect to such increase in the Commitment Aggregate Commitment, no Default or Event of any Lender Default shall have occurred and be continuing and (each an “Increasing Lender”), subject iii) after giving to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as (including any Borrowings to be made on the Increase Effective Date), the Borrower shall be in compliance on a Term Facility as described pro forma basis with the financial covenants set forth in Section 2.8(b7.02. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) below, Borrower executes shall specify the time period within which each applicable Lender is requested to respond (A) a new Line Note payable which shall in no event be less than ten Business Days from the date of delivery of such notice to the order Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees, in its sole discretion, to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made hereunder. To achieve the full amount of a Subsequent Lender requested increase, the Borrower may also invite additional Eligible Assignees (including prior to, and in the amount of its Commitmentlieu of, or (Binviting Lenders) to become Lenders pursuant to a replacement Line Note payable to the order of an Increasing Lender joinder agreement in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes form and delivers substance satisfactory to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)counsel.
(b) If the Aggregate Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower mayshall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, at its optionthe Borrower shall have provided to the Administrative Agent the following, elect in form and substance reasonably satisfactory to designate allthe Administrative Agent:
(i) copies of corporate resolutions certified by the Secretary or Assistant Secretary of the General Partner, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitment as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date, has been duly authorized by all necessary corporate action, together with, upon request of the Administrative Agent, an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) to such effect and as to such other customary matters regarding the transactions contemplated by this Section 2.15 as the Administrative Agent may reasonably request, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the General Partner, on behalf of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, (or, if such representation speaks as of an earlier date, as of such earlier date), (B) no Default or Event of Default exists and (C) the Borrower is in compliance, on a pro forma basis, with the financial covenants set forth in Section 7.02 hereof.
(c) The Borrower shall prepay any portion of at least $50,000,000, of Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Aggregate Commitment under this Section.
(d) This Section 2.8(a) as the Term Facility (shall supersede any provisions in Sections 2.12 or any portion of at least $10,000,000 with respect to any subsequent increase 10.01 to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentcontrary.
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Increase in Aggregate Commitment. (ai) At any time after the Closing Date of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary Subject to the request of Borrower so long as the conditions set forth under clause (iv) below are satisfiedand the other requirements of this Section 2.03(a), without upon notice to Administrative Agent (which shall promptly notify the consent of the Lenders (except as specified in this Section 2.8Lenders), Borrower may from time to time at the request of Borrower, an increase in the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible AssigneeCommitment;
(ii) except At the time of sending the notice described in Section 2.03(a)(i), Borrower (in consultation with Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the extent Lenders). Each Lender shall notify Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Percentage Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(iii) Administrative Agent shall notify Borrower elects of the Lenders’ responses to designate all the request made hereunder. In the event that Borrower cannot achieve the full amount of a requested increase from the existing Lenders and subject to the approval of Administrative Agent and Issuing Bank (which approvals shall not be unreasonably withheld), Borrower may invite Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel.
(iv) Any increase in the Aggregate Commitment shall be subject to the following additional conditions:
(A) The Aggregate Commitment shall not at any time exceed the lesser of (1) the Aggregate Maximum Credit Amount after adjustments resulting from reductions thereof pursuant to Section 2.03(b) and (2) the then effective Borrowing Base;
(B) Any increase of the Aggregate Commitment shall be in a minimum amount of $5,000,000, or integral multiples of $1,000,000 in excess thereof;
(C) No Lender’s Commitment may be increased without the consent of such Lender;
(D) No Default or Event of Default shall have occurred and be continuing at the Increase Effective Date (defined below) or result from such increase;
(E) Borrower shall have paid any additional amounts required pursuant to Section 5.04 (including those resulting from any prepayment or assignment required by Section 2.03(a)(vi)) and any upfront or other fees charged by increasing and/or new Lenders required as a portion result of the increase in the Aggregate Commitment; and
(F) Borrower shall provide such other documents as Administrative Agent may reasonably request.
(v) If the Aggregate Commitment is increased in accordance with this Section 2.03
(a) Administrative Agent and Borrower shall determine the effective date (such date, the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly (i) notify Borrower of the final allocation of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(band the Increase Effective Date, and (ii) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent notify each Lender in the amount of its Commitment, or (B) a replacement Line Note payable to Commitment as of the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; andIncrease Effective Date.
(vi) no Lender shall be an Increasing Lender without To the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After extent necessary to keep the admission of outstanding Loans ratable with any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies revised Percentage Shares of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or Lenders arising from any portion of at least $50,000,000, of any nonratable increase in the Aggregate Commitment under this Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established2.03(a), provided that each Subsequent Borrower shall prepay Loans outstanding on the Increase Effective Date and/or Lenders shall make assignments pursuant to arrangements satisfactory to Administrative Agent. In the event any Lender and Increasing Lender providing the Commitments so designated has agreed in writing requests a new Note to provide a Term Commitment or increase its Term Commitment. Any reflect such election must be made by written notice to the Administrative Agent given along with BorrowerLender’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion revised Percentage Share of the increase Borrower desires to so designate as Term CommitmentsMaximum Credit Amount, the Lenders that will be providing such Term Commitments. Borrower shall execute deliver a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the a principal amount of such Term Lender’s equal to its revised Percentage Share of the Aggregate Term CommitmentMaximum Credit Amount, and otherwise duly completed. In the event any additional Lender requests a Note, Borrower shall deliver a Note payable to such Lender in a principal amount equal to its Percentage Share of the Maximum Credit Amount, and otherwise duly completed.
(vii) This Section shall supersede any provisions in Sections 4.04(b) or 12.04(i) to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Georesources Inc)
Increase in Aggregate Commitment. The Borrower shall also have the right from time to time to increase the Aggregate Commitment up to a maximum of $400,000,000 by either adding new banks as Lenders (asubject to the Administrative Agent's prior written approval of the identity of such new banks) At any time after or obtaining the Closing Date agreement, which shall be at such Lender's or Lenders' sole discretion, of this Agreementone or more of the then current Lenders to increase its or their Commitments. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit L attached hereto by the Borrower, the Administrative Agent may in its discretion (and the new bank or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes Borrower and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide cause the new or existing Lenders providing such increase, by either funding more than its or their Percentage of new ratable Advances made on such date or purchasing shares of outstanding ratable Loans held by the other Lenders or a combination thereof, to hold its or their Percentage of all ratable Advances outstanding at the close of business on such day. The Lenders agree to cooperate in any required sale and purchase of outstanding ratable Advances to achieve such result. If such new or existing Lenders providing the increase purchase shares of outstanding ratable Loans held by the other Lenders on a date which is not the last day of the applicable Interest Period, Borrower will indemnify each Lender and for any loss or cost incurred by such Lender resulting from the payment of any breakage fees relating to Borrower copies of a ratable LIBOR Advance funded or maintained in connection with such a purchase. In no event will such new or existing Lenders providing the signature pages of such Subsequent Lender increase be required to fund or Increasing Lender, and purchase a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in Competitive Bid Loan or Swingline Loan to comply with this Section on such date. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $400,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLenders.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (First Industrial Realty Trust Inc)
Increase in Aggregate Commitment. (a) At any time prior to the Commitment Termination Date, the Company may, not more than once in any period of twelve consecutive calendar months, request that the Aggregate Commitment be increased; provided, that without the prior written consent of all of the Lenders, (A) the Aggregate Commitment shall at no time exceed $300,000,000 and (B) each such request shall be in a minimum amount of at least $25,000,000. Each request shall be made in a written notice given to the Administrative Agent and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of delivery of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably. On or prior to the date that is fifteen (15) Business Days after receipt of the Closing Date Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of this Agreementsuch fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent shall allocate the amount of increases based on the ratio of each Lender’s maximum Commitment as set forth in such Lender’s Lender Increase Notice to the aggregate of the maximum aggregate Commitments set forth in all Lender Increase Notices. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (3) Business Days prior to the proposed effective date of the requested increase, the Company may notify the Administrative Agent of any Eligible Assignee that shall have agreed to become a Lender (a “Proposed New Lender”) in its discretion connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the approval of the Administrative Agent and the Issuing Banks (which discretion approval shall not be arbitrarily unreasonably withheld or unreasonably exercised contrary delayed) (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee) and shall have agreed to a Commitment of not less than $10,000,000. If no Proposed New Lender(s) shall have committed to the request shortfall from the Lender Increase Notices, then the Company shall be deemed to have reduced the amount of Borrower so long as the conditions Commitment Increase Notice to the aggregate amount set forth below are satisfied)in the Lender Increase Notices. Based upon the Lender Increase Notices, without any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the consent Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the Lenders amount of each Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) each Subsequent Lender is as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all Event of Default or a portion Potential Event of Default, (II) at the time and after giving effect to any such increase, the Index Debt shall be rated BBB- or better by S&P and Baa3 or better by ▇▇▇▇▇’▇ (or, if neither S&P nor ▇▇▇▇▇’▇ shall then be rating the Index Debt, an equivalent rating from any other Applicable Rating Agency or Agencies), (III) the Company, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a Commitment in support of such increase in the Aggregate Commitment shall have executed and delivered a Commitment and Acceptance, (IV) the Company and each Proposed New Lender shall otherwise have executed and/or delivered such other instruments and documents as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page shall have reasonably requested in connection with such increase and (V) the Company shall have paid any fees charged by the Lenders providing Lender Increase Notices and the Proposed New Lenders. Upon satisfaction of the conditions precedent to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing LenderCommitment, the Administrative Agent shall promptly provide to advise the Company and each Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lenderincrease. Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 12.01(c), from and a statement of after the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect that is accepted by a Proposed New Lender, such Proposed New Lender shall be a party to any subsequent increase this Agreement and, to the Aggregate Commitment after extent of its Commitment, have the Term Facility has been established)rights and obligations of a Lender under this Agreement. Nothing contained herein shall constitute, provided that each Subsequent or otherwise be deemed to be (x) a commitment on the part of any Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made Commitment hereunder at any time or (y) a commitment by written notice to the Administrative Agent given along with Borrower’s request for an increase or any of its Affiliates to find Proposed New Lenders to satisfy requested increases in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmenthereunder.
Appears in 1 contract
Sources: Credit Agreement (7 Eleven Inc)
Increase in Aggregate Commitment. The Borrowers shall also have the right from time to time, provided no Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate Commitment up to a maximum of $200,000,000 by either adding new lenders as Lenders (asubject to the Administrative Agent's prior written approval of the identity of such new lenders) At or obtaining the agreement, which shall be at such Lender's or Lenders' sole discretion, of one or more of the then current Lenders to increase its or their Commitments. The Administrative Agent shall use commercially reasonable efforts to arrange such increased Commitments and the Borrowers' approval of any time after new lenders shall not be unreasonably withheld or delayed. On the Closing Date effective date of this Agreementany such increase, the Borrowers shall pay to the Administrative Agent any amounts due to it under the Fee Letter and to each lender providing such additional Commitment the up-front fee agreed to by the Borrowers. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit H attached hereto by the Borrowers, the Administrative Agent may in its discretion (and the new lender or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes Borrowers and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of cause the signature pages of new or existing Lenders providing such Subsequent Lender increase, by either funding more than its or Increasing Lender, and a statement of the current Aggregate Commitment and related their Percentage of each Lender (which may be new Advances made on such date or purchasing shares of outstanding Loans held by the other Lenders or a combination thereof, to hold its or their Percentage of all Advances outstanding at the close of business on such day. The Lenders agree to cooperate in the form any required sale and purchase of a revised Schedule 1.1).
(b) Borrower may, at its option, elect outstanding Advances to designate all, or any portion of at least $50,000,000, of any increase in achieve such result. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $200,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term CommitmentsLenders. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.ARTICLE IIA
Appears in 1 contract
Sources: Credit Agreement (Inland Retail Real Estate Trust Inc)
Increase in Aggregate Commitment. (a) At Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more increases (the amount of any such increase being a “Commitment Increase”) in the Aggregate Commitment which in the aggregate do not exceed $350,000,000 and do not cause the Aggregate Commitment to exceed $700,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time after period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the Closing Date date of this Agreement, delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent may in within such time period whether or not it agrees to increase its discretion Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which discretion any such Lender that agrees to increase its Commitment hereunder, an “Increasing Lender"). Any Lender not responding within such time period shall not be arbitrarily or unreasonably exercised contrary deemed to the request of Borrower so long as the conditions set forth below are satisfied), have declined to increase its Commitment. No Lender’s Commitment amount shall be increased without the consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders’ responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional Eligible Assignees to become Lenders (except as specified in this Section 2.8)any such Lender, from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Additional Lender”"), subject to . The sum of the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase increases in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to Commitments of the order Increasing Lenders plus the Commitments of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after Additional Lenders upon giving effect to the admission of any Subsequent Lender or the increase Commitment Increase shall not in the Commitment aggregate exceed the amount of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Increase.
(b) Borrower may, at its option, elect to designate all, or any portion Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of at least $50,000,000, of any increase (A) an agreement in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender form and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice substance satisfactory to the Administrative Agent given along with Borrower’s request for an increase in signed by the Aggregate Commitment under Section 2.8(a) Borrowers, each Increasing Lender and must specify each Additional Lender, setting forth the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order Commitments of each such Subsequent Lender and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Loans to be made by each such Lender described in subsection (c) below, if applicable, and (iii) receipt by the Administrative Agent of a certificate (the statements contained in which shall be true) of an Authorized Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct as of such earlier date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
(c) Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the Administrative Agent in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentmanner described in Section 2.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after In the Closing Date event that a Lender desires to increase its Commitment Amount and its Commitment Percentage, or a bank or other entity that is not a Lender desires to become a Lender and provide an additional Commitment Amount and Commitment Percentage hereunder, and so long as no Default or Event of this Agreement, Default shall have occurred and be continuing and with the Administrative prior written consent of Agent may in its discretion (which discretion shall not be arbitrarily unreasonably conditioned, withheld or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfieddelayed), without the consent of Borrower shall have the Lenders (except as specified in this Section 2.8), right from time to time at prior to the request of Borrower, Term upon not less than thirty (30) days’ (or such shorter time as agreed to by Agent) prior written notice to Agent to increase the Aggregate Maximum Revolving Advance Amount and the Total Commitment Amount by an aggregate amount of up to $25,000,000 (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditionsterms and conditions set forth herein, “Commitment Adjustment Event”); provided, that in no event shall the aggregate Commitment Amount of all Lenders be increased to an amount greater than $150,000,000; provided, further, that:
(i) each Subsequent if the Borrower elects to increase the Commitment Amount and Commitment Percentage of a Lender, the Borrower and such Lender is an Eligible Assigneeshall execute and deliver to the Agent a certificate substantially in the form of Exhibit 2.24(A) attached hereto (a “Commitment Increase Certificate”), provided, that, Borrower may not elect to increase the Commitment Amount more than three times prior to the expiration of the Term;
(ii) except to the extent Borrower elects to designate all or a portion any such Commitment Amount increase shall be in increments of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitmentno less than $5,000,000;
(iii) each Subsequent if the Borrower elects to increase the Commitment Amount and Commitment Percentage by causing a bank or financial institution that at such time is not a Lender executes to become a Lender (an “Additional Lender”), the Borrower and delivers such Additional Lender shall execute and deliver to the Administrative Agent, a certificate substantially in the form of Exhibit 2.24(B) hereto (an “Additional Lender Certificate”); provided that, any such Additional Lender shall be approved by the Agent a signature page (which approval shall not be unreasonably conditioned, withheld or delayed) prior to this Agreement, such bank or financial institution becoming an Additional Lender hereunder and each Increasing the Borrower agrees to pay the Additional Lender executes and delivers any commitment fee or other similar fee required by such Additional Lender with respect to the Administrative Agent a its new signature page to this Agreement reflecting its increased CommitmentCommitment Amount;
(iv) subject to acceptance and recording thereof pursuant to this Section 2.24 hereof, from and after the effective date specified in the Commitment Increase Certificate or the Additional Lender Certificate, as applicable (or if any Eurodollar Rate Loan is outstanding, then on the last day of the Interest Period in respect of such Eurodollar Rate Loan, unless the Borrower has paid compensation required with respect to such Eurodollar Rate Loan): (a) the amount of the aggregate Commitment Amount, the Total Commitment Amount and Maximum Revolving Advance Amount shall be increased by the amount set forth therein, and
(b) in the case of an Additional Lender Certificate, any Additional Lender party thereto shall be a party to this Agreement and the Other Documents and have the rights and obligations of a Lender under this Agreement and the Other Documents. In addition, the Lender party to the Commitment Increase Certificate or Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Advances (and participation interests in Letters of Credit) of each of the other Lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Lender (including any Additional Lender, if applicable) shall hold its respective percentage of the outstanding Advances (and participation interests) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAmount, the Aggregate Total Commitment does not exceed $1,000,000,000;Amount and the Maximum Revolving Advance Amount; and
(v) no Event upon its receipt of Default exists; and
(vi) no a duly completed Commitment Increase Certificate or an Additional Lender Certificate, as applicable, executed by the Borrower and the Lender or the Additional Lender party thereto, as applicable, the Agent shall be an Increasing accept such Commitment Increase Certificate or Additional Lender without Certificate and shall record the written consent of such Lender, which consent such Lender may withhold information contained therein in its sole and absolute discretionregister. After the admission of any Subsequent Lender or No increase in the Commitment of any Increasing LenderMaximum Revolving Advance Amount, the Administrative Agent Total Commitment Amount and Commitment Amount shall promptly provide be effective for purposes of this Agreement unless it has been recorded in the Agent’s register. The signature pages to this Agreement shall automatically be amended to include the new Commitment Amounts and Commitment Percentages for each Lender and to Borrower copies of signatory hereto each time a Commitment Increase Certificate or Additional Lender Certificate is accepted by the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Agent.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Union Drilling Inc)
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, Upon notice to the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to promptly notify the request of Borrower so long as Lenders identified by the conditions set forth below are satisfiedBorrower), without the consent of the Lenders (except as specified in this Section 2.8), Borrower may from time to time at during the term of this Agreement request of Borrower, an increase in the Aggregate Commitment by to an amount not exceeding $700,000,000 (after giving effect to any such increase) at any time; provided that (i) admitting additional Lenders hereunder (each any such request for an increase shall be in a “Subsequent Lender”), minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (ii) increasing immediately before and after giving effect to such increase in the Commitment Aggregate Commitment, no Default or Event of any Lender Default shall have occurred and be continuing and (each an “Increasing Lender”), subject iii) after giving to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as (including any Borrowings to be made on the Increase Effective Date), the Borrower shall be in compliance on a Term Facility as described pro forma basis with the financial covenants set forth in Section 2.8(b7.02. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) below, Borrower executes shall specify the time period within which each applicable Lender is requested to respond (A) a new Line Note payable which shall in no event be less than ten Business Days from the date of delivery of such notice to the order Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees, in its sole discretion, to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made hereunder. To achieve the full amount of a Subsequent Lender requested increase, the Borrower may also invite additional Eligible Assignees (including prior to, and in the amount of its Commitmentlieu of, or (Binviting Lenders) to become Lenders pursuant to a replacement Line Note payable to the order of an Increasing Lender joinder agreement in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes form and delivers substance satisfactory to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)counsel.
(b) If the Aggregate Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower mayshall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, at its optionthe Borrower shall have provided to the Administrative Agent the following, elect in form and substance reasonably satisfactory to designate allthe Administrative Agent:
(i) copies of corporate resolutions certified by a Responsible Officer of the Borrower, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitment as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date, has been duly authorized by all necessary corporate action, together with, upon request of the Administrative Agent, an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) to such effect and as to such other customary matters regarding the transactions contemplated by this Section 2.15 as the Administrative Agent may reasonably request, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the General Partner, on behalf of the Parent and a Responsible Officer of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, (or, if such representation speaks as of an earlier date, as of such earlier date), (B) no Default or Event of Default exists and (C) the Parent is in compliance, on a pro forma basis, with the financial covenants set forth in Section 7.02 hereof.
(c) The Borrower shall prepay any portion of at least $50,000,000, of Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Aggregate Commitment under this Section.
(d) This Section 2.8(a) as the Term Facility (shall supersede any provisions in Sections 2.12 or any portion of at least $10,000,000 with respect to any subsequent increase 10.01 to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentcontrary.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after In the Closing Date event that a Lender desires to increase its Commitment Amount and its Commitment Percentage, or a bank or other entity that is not a Lender desires to become a Lender and provide an additional Commitment Amount and Commitment Percentage hereunder, and so long as no Default or Event of this Agreement, Default shall have occurred and be continuing and with the Administrative prior written consent of Agent may in its discretion (which discretion shall not be arbitrarily unreasonably conditioned, withheld or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfieddelayed), without the consent of Borrower shall have the Lenders (except as specified in this Section 2.8), right from time to time at prior to the request of Borrower, Term upon not less than thirty (30) days’ (or such shorter time as agreed to by Agent) prior written notice to Agent to increase the Aggregate Maximum Revolving Advance Amount and the Total Commitment Amount by an aggregate amount of up to $32,500,000 (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditionsterms and conditions set forth herein, “Commitment Adjustment Event”); provided, that in no event shall the aggregate Commitment Amount of all Lenders be increased to an amount greater than $100,000,000; provided, further, that:
(i) each Subsequent if the Borrower elects to increase the Commitment Amount and Commitment Percentage of a Lender, the Borrower and such Lender is an Eligible Assigneeshall execute and deliver to the Agent a certificate substantially in the form of Exhibit 2.24(A) attached hereto (a “Commitment Increase Certificate”), provided, that, Borrower may not elect to increase the Commitment Amount more than three times prior to the expiration of the Term;
(ii) except to the extent Borrower elects to designate all or a portion any such Commitment Amount increase shall be in increments of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitmentno less than $5,000,000;
(iii) each Subsequent if the Borrower elects to increase the Commitment Amount and Commitment Percentage by causing a bank or financial institution that at such time is not a Lender executes to become a Lender (an “Additional Lender”), the Borrower and delivers such Additional Lender shall execute and deliver to the Administrative Agent, a certificate substantially in the form of Exhibit 2.24(B) hereto (an “Additional Lender Certificate”); provided that, any such Additional Lender shall be approved by the Agent a signature page (which approval shall not be unreasonably conditioned, withheld or delayed) prior to this Agreement, such bank or financial institution becoming an Additional Lender hereunder and each Increasing the Borrower agrees to pay the Additional Lender executes and delivers any commitment fee or other similar fee required by such Additional Lender with respect to the Administrative Agent a its new signature page to this Agreement reflecting its increased CommitmentCommitment Amount;
(iv) subject to acceptance and recording thereof pursuant to this Section 2.24 hereof, from and after the effective date specified in the Commitment Increase Certificate or the Additional Lender Certificate, as applicable (or if any Eurodollar Rate Loan is outstanding, then on the last day of the Interest Period in respect of such Eurodollar Rate Loan, unless the Borrower has paid compensation required with respect to such Eurodollar Rate Loan): (a) the amount of the aggregate Commitment Amount, the Total Commitment Amount and Maximum Revolving Advance Amount shall be increased by the amount set forth therein, and (b) in the case of an Additional Lender Certificate, any Additional Lender party thereto shall be a party to this Agreement and the Other Documents and have the rights and obligations of a Lender under this Agreement and the Other Documents. In addition, the Lender party to the Commitment Increase Certificate or Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Advances (and participation interests in Letters of Credit) of each of the other Lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Lender (including any Additional Lender, if applicable) shall hold its respective percentage of the outstanding Advances (and participation interests) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAmount, the Aggregate Total Commitment does not exceed $1,000,000,000;Amount and the Maximum Revolving Advance Amount; and
(v) no Event upon its receipt of Default exists; and
(vi) no a duly completed Commitment Increase Certificate or an Additional Lender Certificate, as applicable, executed by the Borrower and the Lender or the Additional Lender party thereto, as applicable, the Agent shall be an Increasing accept such Commitment Increase Certificate or Additional Lender without Certificate and shall record the written consent of such Lender, which consent such Lender may withhold information contained therein in its sole and absolute discretionregister. After the admission of any Subsequent Lender or No increase in the Commitment of any Increasing LenderMaximum Revolving Advance Amount, the Administrative Agent Total Commitment Amount and Commitment Amount shall promptly provide be effective for purposes of this Agreement unless it has been recorded in the Agent’s register. The signature pages to this Agreement shall automatically be amended to include the new Commitment Amounts and Commitment Percentages for each Lender and to Borrower copies of signatory hereto each time a Commitment Increase Certificate or Additional Lender Certificate is accepted by the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1)Agent.
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Union Drilling Inc)
Increase in Aggregate Commitment. (ai) At The Company may at any time propose that the Aggregate Commitment be increased (the amount of such increase being a “Commitment Increase”), effective as at a date prior to the Termination Date and at least 15 days after the Closing Date of Company proposes any such increase to the Agent in writing (an “Increase Date”) as to which agreement is to be reached by an earlier date specified in such notice (a “Commitment Date”); provided, however, that (A) the Company may not propose more than two Commitment Increases in any calendar year, (B) the Company may not propose more than five Commitment Increases pursuant to this Agreement, (C) the Administrative minimum proposed Commitment Increase per notice shall be $10,000,000, (D) in no event shall the Aggregate Commitment hereunder at any time exceed $4,500,000,000, and (E) no Default or Unmatured Default shall have occurred and be continuing on such Increase Date. The Agent may shall notify the Lenders thereof promptly upon its receipt of any such notice. The Agent agrees that it will cooperate with the Company in its discretion (which discretion shall not be arbitrarily discussions with the Lenders and other lending institutions with a view to arranging the proposed Commitment Increase through the increase of the Commitments of one or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), without the consent more of the Lenders (except as specified in this Section 2.8), from time each such Lender that is willing to time at the request of Borrower, increase the Aggregate its Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each being an “Increasing Lender”)) and/or through Commitments provided by one or more Assuming Lenders; provided, subject however, that it shall be in each Lender’s sole discretion whether to increase its Commitment hereunder in connection with the following conditions:
(i) proposed Commitment Increase; and provided further that the minimum Commitment of each Subsequent Assuming Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or that becomes a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page party to this Agreement reflecting its increased Commitment;
(ivpursuant to this Section 2.6(c) after giving effect shall be at least equal to $10,000,000. If agreement is reached on or prior to the admission of any Subsequent Lender or the increase in the applicable Commitment of Date with any Increasing Lender, the Aggregate Lenders and Assuming Lenders as to a Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender Increase (which may be less than but not greater than specified in the form applicable notice from the Company), such agreement to be evidenced by a notice in reasonable detail from the Company to the Agent on or prior to the applicable Commitment Date, such Assuming Lenders, if any, shall become Lenders hereunder as of a revised Schedule 1.1).
(b) Borrower maythe applicable Increase Date and the Commitments of such Increasing Lenders and such Assuming Lenders shall become or be, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established)case may be, provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion as of the increase Borrower desires to so designate as Term CommitmentsIncrease Date, the Lenders that will be providing amounts specified in such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.notice; provided that:
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after In the Closing Date of this Agreementevent that a Lender desires to increase its Commitment, the Administrative Agent may in its discretion (which discretion shall or a bank or other entity that is not be arbitrarily or unreasonably exercised contrary a Lender desires to the request of Borrower become a Lender and provide an additional Commitment hereunder, and so long as no Default or Event of Default shall have occurred and be continuing and with the conditions set forth below are satisfied), without the prior written consent of Agent, the Lenders (except as specified in this Section 2.8), Borrower shall have the right from time to time at prior to the request of Borrower, Facility Termination Date upon not less than thirty (30) days’ prior written notice to Agent to increase the Aggregate Commitment by an aggregate amount of up to $50,000,000 (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditionsterms and conditions set forth herein, “Commitment Adjustment Event”); provided, that in no event shall the Aggregate Commitment be increased to an amount greater than $400,000,000; provided, further, that:
(i1) each Subsequent if the Borrower and a Lender is an Eligible Assignee;
(ii) except elect to increase such Lender’s Commitment, the Borrower and such Lender shall execute and deliver to the extent Borrower elects to designate all or Agent a portion of such increase certificate substantially in the Aggregate form of Exhibit I attached hereto (a “Commitment as a Term Facility as described in Section 2.8(b) belowIncrease Certificate”, and the Borrower executes (A) shall deliver a new Line Note payable to the order of a Subsequent such Lender in the principal amount equal to its Commitment after giving effect to such increase, and otherwise duly completed;
(2) if the Borrower elects to increase the Aggregate Commitment by causing a bank or financial institution that at such time is not a Lender to become a Lender (an “Additional Lender”), the Borrower and such Additional Lender shall execute and deliver to the Agent, a certificate substantially in the form of its CommitmentExhibit J hereto) (an “Additional Lender Certificate”), or (B) together with an Administrative Questionnaire as referred to in Exhibit G, and the Borrower shall deliver a replacement Line Note payable to the order of an Increasing such Additional Lender in a principal amount equal to its Commitment, and otherwise duly completed; provided that, any such Additional Lender shall be approved by the Agent (which approval shall not be unreasonably withheld or delayed) prior to such bank or financial institution becoming an Additional Lender hereunder.
(3) subject to acceptance and recording thereof pursuant to this subsection (ii) hereof, from and after the effective date specified in the Commitment Increase Certificate or the Additional Lender Certificate, as applicable (or if any Eurodollar Advance is outstanding, then on the last day of the Interest Period in respect of such Eurodollar Advance, unless the Borrower has paid compensation required with respect to such Eurodollar Advance): (a) the amount of its new, increased the Aggregate Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing the Commitment, shall be increased by the amount set forth therein, and (b) in the case of an Additional Lender executes and delivers to the Administrative Agent Certificate, any Additional Lender party thereto shall be a new signature page party to this Agreement reflecting its increased Commitment;
(iv) after giving effect and the other Loan Documents and have the rights and obligations of a Lender under this Agreement and the other Loan Documents. In addition, the Lender party to the admission of any Subsequent Lender Commitment Increase Certificate or the increase in the Commitment of any Increasing Additional Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender as applicable, shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and purchase a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the pro rata portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order outstanding Loans (and participation interests in Letters of Credit) of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.other lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such
Appears in 1 contract
Increase in Aggregate Commitment. 2.27.1 Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more increases (athe amount of any such increase being a "Commitment Increase") At in the Aggregate Commitment which in the aggregate do not cause the Aggregate Commitment to exceed $1,250,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the date of delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (any such Lender that agrees to increase its Commitment hereunder, an "Increasing Lender"). Any Lender not responding within such time after period shall be deemed to have declined to increase its Commitment. No Lender's Commitment amount shall be increased without the Closing Date consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders' responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional assignees (in accordance with and subject to the restrictions contained in Section 12.1) to become Lenders (any such Lender, an "Additional Lender"). The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.
2.27.2 Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of (A) an agreement in form and substance satisfactory to the Administrative Agent signed by the Borrowers, each Increasing Lender and each Additional Lender, setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to become a party to this AgreementAgreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied)reasonably request, without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment funding by each Increasing Lender and Additional Lender of any the Revolving Loans to be made by each such Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) 2.27.3 below, if applicable, and (iii) receipt by the Administrative Agent of a certificate (the statements contained in which shall be true) of an Authorized Officer of each Borrower executes certifying and attaching the resolutions adopted by such Borrower approving or consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitmentno Default has occurred and is continuing, or and (B) a replacement all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct as of such earlier date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
2.27.3 Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Note payable to the order of an Loans) are then outstanding, each Increasing Lender in the amount of its new, increased Commitment;
(iii) and each Subsequent Additional Lender executes and delivers shall provide funds to the Administrative Agent in the manner described in Section 2.2. The funds so provided by any such Lender shall be deemed to be a signature page to this AgreementRevolving Loan made by such Lender on the date of such Commitment Increase, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) an in an amount such that after giving effect to such Commitment Increase and the admission Revolving Loans made on the date of such Commitment Increase, each Advance outstanding hereunder shall consist of Revolving Loans made by the Lenders ratably in accordance with each Lender's Pro Rata Share. Also upon giving effect to any Commitment Increase, each Lender shall participate in any outstanding Facility LC's (other than any Bank Guaranties) and Swing Line Loans ratably in accordance with its Pro Rata Share.
2.27.4 Notwithstanding any provision contained herein to the contrary, from and after the date of any Subsequent Commitment Increase and the making of any Revolving Loans on such date pursuant to Section 2.27.3 above, all calculations and payments of interest on the Advances and payment of amounts owing with respect to other Outstanding Credit Exposure of each Lender or shall take into account the increase in the actual Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage principal amount outstanding of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be Revolving Loan made by written notice to such Lender during the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion relevant period of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmenttime.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after After the Closing Date of this AgreementDate, in the Administrative Agent may in event that a Lender desires to increase its discretion (which discretion shall Commitment, or a bank or other entity that is not be arbitrarily or unreasonably exercised contrary a Lender desires to the request of Borrower become a Lender and provide an additional Commitment hereunder, and so long as no Default or Unmatured Default shall have occurred and be continuing or would result immediately after giving effect to such increase and with the conditions set forth below are satisfied), without the prior written consent of the Lenders (except as specified in this Section 2.8)Agent, the Borrower shall have the right from time to time at prior to the request of Borrower, Facility Termination Date upon not less than thirty (30) days’ prior written notice to the Agent to increase the Aggregate Commitment by an aggregate amount of up to $400,000,000 (isubject to the terms and conditions set forth herein, “Commitment Adjustment Event”); provided that in no event shall the Aggregate Commitment be increased to an amount greater than $2,000,000,000; provided, further, that:
(A) admitting additional Lenders hereunder if the Borrower and a Lender elect to increase such Lender’s Commitment, the Borrower and such Lender shall execute and deliver to the Agent a certificate substantially in the form of Exhibit I attached hereto (each a “Subsequent Commitment Increase Certificate”), and the Borrower shall deliver a new Note payable to such Lender in the principal amount equal to its Commitment after giving effect to such increase, and otherwise duly completed;
(B) if the Borrower elects to increase the Aggregate Commitment by causing a bank or financial institution that at such time is not a Lender to become a Lender (an “Additional Lender”), or the Borrower and such Additional Lender shall execute and deliver to the Agent, a certificate substantially in the form of Exhibit J hereto) (ii) increasing the Commitment of any Lender (each an “Increasing LenderAdditional Lender Certificate”), subject together with an Administrative Questionnaire as referred to in Exhibit G, and the following conditions:
Borrower shall deliver a Note payable to such Additional Lender in a principal amount equal to its Commitment, and otherwise duly completed; provided that any such Additional Lender shall be approved by the Agent, Swingline Lender and LC Issuer (iin each case, such approval not to be unreasonably withheld, conditioned or delayed) each Subsequent prior to such bank or financial institution becoming an Additional Lender is an Eligible Assigneehereunder;
(C) subject to acceptance and recording thereof pursuant to this subsection (ii) except to ), from and after the extent Borrower elects to designate all effective date specified in the Commitment Increase Certificate or a portion the Additional Lender Certificate, as applicable (or if any Eurodollar Advance is outstanding, then on the last day of the Interest Period in respect of such increase in Eurodollar Advance, unless the Aggregate Commitment as a Term Facility as described in Section 2.8(bBorrower has paid compensation required with respect to such Eurodollar Advance): (a) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its the Aggregate Commitment, or and the Commitment, shall be increased by the amount set forth therein and (Bb) a replacement Line Note payable to in the order case of an Increasing Additional Lender in the amount of its newCertificate, increased Commitment;
(iii) each Subsequent any Additional Lender executes and delivers to the Administrative Agent party thereto shall be a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page party to this Agreement reflecting and the other Loan Documents and have the rights and obligations of a Lender under this Agreement and the other Loan Documents. In addition, the Lender party to the Commitment Increase Certificate or Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Loans (and participation interests in Letters of Credit) of each of the other lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Lender (including any Additional Lender, if applicable) shall hold its increased Commitment;
respective percentage of the outstanding Loans (ivand participation interests) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default existsCommitment; and
(viD) no upon its receipt of a duly completed Commitment Increase Certificate or an Additional Lender shall be an Increasing Lender without Certificate, as applicable, executed by the written consent of such Lender, which consent such Lender may withhold in its sole Borrower and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Additional Lender party thereto, as applicable, and, with respect to an Additional Lender, the Administrative Questionnaire referred to in Exhibit G, the Agent shall promptly provide to each accept such Commitment Increase Certificate or Additional Lender Certificate and to Borrower copies of record the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be information contained therein in the form of a revised Schedule 1.1Register maintained by the Agent pursuant to Section 12.3(d).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any . No increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion shall be effective for purposes of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility this Agreement unless it has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase recorded in the Aggregate Commitment under Register as provided in this Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment12.3(d).
Appears in 1 contract
Increase in Aggregate Commitment. (a) At The Borrower shall have the right to request increases in the Aggregate Commitment, on not more than six occasions, up to a total amount not to exceed $500,000,000 (“Maximum Aggregate Commitment”) by providing written notice to the Administrative Agent. The Administrative Agent shall promptly give notice of such request to each Lender (the “Aggregate Commitment Increase Notice”). No Lender shall be obligated to increase its Commitment and the Borrower shall be permitted to bring new Eligible Lenders in to the facility with respect to such increase. Any increase in the Commitments shall be effective as of the date specified pursuant to Section 2.26(c); provided that the total Commitments may not at any time after exceed the Closing Date Maximum Aggregate Commitment. If the sum of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by then in effect plus the offered Commitments (i) admitting additional Lenders hereunder in the case of each new Eligible Lender that becomes a party to this Agreement (each a “Subsequent New Lender”), or ) and the amount of offered increases to Commitments (ii) increasing in the Commitment case of any Lender existing Lenders agreeing to increase their respective Commitments (each an “Increasing Existing Lender”, and together with the New Lenders, the “Consenting Lenders”)) does not exceed the Maximum Aggregate Commitment, subject to the following conditions:
Commitment of each Consenting Lender shall be increased by its offered Commitment (iin the case of a New Lender) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such offered increase in Commitment (in the case of an Existing Lender) as hereinafter provided. If the sum of the Aggregate Commitment then in effect plus the aggregate offered Commitments from New Lenders and offered increases in Commitments from Existing Lenders exceeds the Maximum Aggregate Commitment, the Commitment of each New Lender shall be, or the Commitment of each Existing Lender shall be increased by, as a Term Facility the case may be, an amount equal to the product of (x) such New Lender’s offered Commitment, or such Lender’s offered increase in Commitment, as described in Section 2.8(bthe case may be, multiplied by (y) below, Borrower executes the quotient of (1) the excess of (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Maximum Aggregate Commitment, or over (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
then in effect, divided by (v2) no Event of Default exists; and
the aggregate offered Commitments (vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment case of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender New Lenders) and/or offered increases in Commitments (which may be in the form case of a revised Schedule 1.1)Existing Lenders) of all Consenting Lenders.
(b) Borrower may, at its option, elect to designate all, or any portion No increase of at least $50,000,000, of any increase in the Aggregate Commitment may be effected under this Section 2.8(a) as the Term Facility (2.26 unless no Default or any portion Event of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that Default will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to in existence on the order effective date of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.such
Appears in 1 contract
Increase in Aggregate Commitment. (a) At any time after the Closing Date of this Agreement, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note and Competitive Bid Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,0001,250,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment.
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Increase in Aggregate Commitment. (ai) At any time after the Closing Date of this Agreementtime, the Administrative Borrower may request that the Aggregate Commitment be increased; provided, however, that the Aggregate Commitment shall at no time exceed $3,000,000,000 minus the aggregate amount of all reductions in the Aggregate Commitment previously made pursuant to Section 2.5. Each request shall be made in a written notice given to the Agent may and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to Commitment. In the request event that the increases of Borrower so long as the conditions Commitments set forth below are satisfied)in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, without the Agent shall have the right, with the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date, the Borrower may notify the Agent of any Eligible Assignee that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Agent (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the Borrower, the Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be Acceptance substantially in the form of Exhibit I hereto (a revised Schedule 1.1“Commitment and Acceptance”).
, (bIII) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental customary opinions in form and substance reasonably satisfactory to the Agent and (IV) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Borrower. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its optionrequest for the commitment increase. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, elect to designate all, or any portion the Agent shall promptly advise the Borrower and each Lender of at least $50,000,000, the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to its Outstanding Credit Exposure in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the increase Borrower desires to Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so designate as Term Commitmentsthat, the Lenders that will be providing from and after such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of payments, each such Subsequent Lender and Increasing Lender in the amount of such Term Buying Lender’s Percentage Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Term CommitmentOutstanding Credit Exposure. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the Agent. The Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the portion of the Outstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Borrower hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the sale and assignment of any Eurocurrency Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 1 contract
Increase in Aggregate Commitment. (a) At The Borrowers may, at their option, no more than one time in any time after the Closing Date of this Agreementcalendar year, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary seek to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment Commitment, in minimum increments of $25,000,000, by up to an aggregate amount of $300,000,000 (i) admitting additional Lenders hereunder (each resulting in a “Subsequent Lender”), or (ii) increasing the maximum Aggregate Commitment of any Lender $1,300,000,000) upon at least three (each an “Increasing Lender”), subject 3) Business Days’ written notice to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to Agent, which notice shall specify the extent Borrower elects to designate all or a portion amount of such increase and shall be delivered at a time when no Default or Unmatured Default has occurred and is continuing. The Borrowers may, after giving such notice, offer the increase in the Aggregate Commitment as on either a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable ratable basis to the order of Lenders or on a Subsequent Lender in the amount of its Commitment, non-pro rata basis to one or (B) a replacement Line Note payable more Lenders and/or to other banks or entities reasonably acceptable to the order of an Increasing Agent. Any Lender in the amount of its newmay, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion, accept or reject any offer from the Borrowers to increase its Commitment. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any No increase in the Aggregate Commitment under Section 2.8(a) as shall become effective until the Term Facility (existing or any portion of at least $10,000,000 with respect to any subsequent increase new Lenders extending such incremental Commitment amount and the Borrowers shall have delivered to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed Agent a document in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice form reasonably satisfactory to the Administrative Agent given along with Borrower’s request for an increase in pursuant to which any such existing Lender states the Aggregate amount of its Commitment under Section 2.8(a) increase, any such new Lender states its Commitment amount and must specify agrees to assume and accept the portion obligations and rights of a Lender hereunder and the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing Borrowers accept such Term incremental Commitments. Borrower The Lenders (new or existing) shall execute accept an assignment from the existing Lenders, and the existing Lenders shall make an assignment to the new or existing Lender accepting a new or replacement Term Note payable increased Commitment, of an interest in each then outstanding Ratable Advance such that, after giving effect thereto, all Ratable Advances are held ratably by the Lenders in proportion to their respective Commitments. Assignments pursuant to the order of each preceding sentence shall be made in exchange for the principal amount assigned plus accrued and unpaid interest, Commitment Fees and Facility Fees. The Borrowers shall make any payments under Section 3.4 resulting from such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentassignments.
Appears in 1 contract
Sources: Five Year Credit Agreement (Nationwide Financial Services Inc/)
Increase in Aggregate Commitment. (a) At The Borrowers may, at their option, no more than one time in any time after the Closing Date of this Agreementcalendar year, the Administrative Agent may in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary seek to the request of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment Commitment, in minimum increments of $25,000,000, by up to an aggregate amount of $300,000,000 (i) admitting additional Lenders hereunder (each resulting in a “Subsequent Lender”), or (ii) increasing the maximum Aggregate Commitment of any Lender $1,300,000,000) upon at least three (each an “Increasing Lender”), subject 3) Business Days’ written notice to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to Agent, which notice shall specify the extent Borrower elects to designate all or a portion amount of such increase and shall be delivered at a time when no Default or Unmatured Default has occurred and is continuing. The Borrowers may, after giving such notice, offer the increase in the Aggregate Commitment as on either a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable ratable basis to the order of Lenders or on a Subsequent Lender in the amount of its Commitment, non-pro rata basis to one or (B) a replacement Line Note payable more Lenders and/or to other banks or entities reasonably acceptable to the order of an Increasing Agent. Any Lender in the amount of its newmay, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion, accept or reject any offer from the Borrowers to increase its Commitment. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any No increase in the Aggregate Commitment under Section 2.8(a) as shall become effective until the Term Facility (existing or any portion of at least $10,000,000 with respect to any subsequent increase new Lenders extending such incremental Commitment amount and the Borrowers shall have delivered to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed Agent a document in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice form reasonably satisfactory to the Administrative Agent given along with Borrower’s request for an increase in pursuant to which any such existing Lender states the Aggregate amount of its Commitment under Section 2.8(a) increase, any such new Lender states its Commitment amount and must specify agrees to assume and accept the portion obligations and rights of a Lender hereunder and the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing Borrowers accept such Term incremental Commitments. Borrower The Lenders (new or existing) shall execute accept an assignment from the existing Lenders, and the existing Lenders shall make an assignment to the new or existing Lender accepting a new or replacement Term Note payable increased Commitment, of an interest in each then outstanding Ratable Advance such that, after giving effect thereto, all Ratable Advances are held ratably by the Lenders in proportion to their respective Commitments. Assignments pursuant to the order of each preceding sentence shall be made in exchange for the principal amount assigned plus accrued and unpaid interest and Facility Fees. The Borrowers shall make any payments under Section 3.4 resulting from such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitmentassignments.
Appears in 1 contract
Sources: Five Year Credit Agreement (Nationwide Financial Services Inc/)
Increase in Aggregate Commitment. The Borrower shall also have the right from time to time, provided no Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate Commitment up to a maximum of $600,000,000 by either adding new lenders as Lenders (asubject to the Administrative Agent's prior written approval of the identity of such new lenders) At or obtaining the agreement, which shall be at such Lender's or Lenders' sole discretion, of one or more of the then current Lenders to increase its or their Commitments. The Administrative Agent's approval of any time after new lenders shall not be unreasonably withheld or delayed. On the Closing Date effective date of this Agreementany such increase, the Borrower shall pay to the Administrative Agent any amounts due to it under the Fee Letter and to each lender providing such additional Commitment the up-front fee agreed to by the Borrower. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit G attached hereto by the Borrower, the Administrative Agent may in its discretion (and the new lender or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes Borrower and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of cause the signature pages of new or existing Lenders providing such Subsequent Lender increase, by either funding more than its or Increasing Lender, and a statement of the current Aggregate Commitment and related their Percentage of each new Advances made on such date or purchasing shares of outstanding Loans held by the other Lenders or a combination thereof, to hold its or their Percentage of all Advances outstanding at the close of business on such day. The Lenders agree to cooperate in any required sale and purchase of outstanding Advances to achieve such result, provided that Borrower shall be responsible for paying any amounts due under Section 3.4 to any Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, sells all or any portion of at least $50,000,000, a Fixed Rate Advance on a date which is not the last day of any increase in the Interest Period applicable thereto. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $600,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLenders.
Appears in 1 contract
Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, Harley may request that the Aggregate Commitment be increased; provided that, (A) the Aggregate Commitment shall at no time exceed $1,200,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by Harley not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by Harley in the Commitment Increase Notice, the Global Administrative Agent may in its discretion and the Arrangers shall have the right, with the consent of Harley, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (which discretion shall not be arbitrarily or unreasonably exercised contrary 3) Business Days prior to the request proposed effective date of Borrower so long as the conditions set forth below are satisfied)requested increase, without Harley may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If Harley shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then Harley shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify Harley and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) Harley, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit F hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantors shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to Harley. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify Harley of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers Harley may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise Harley and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the sum of (i) the aggregate principal amount of its Syndicated Global Loans outstanding at such time, plus (ii) an amount equal to its actual participation interest of its Pro Rata Share of the aggregate principal amount of Swing Line Loans and Syndicated Canadian Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. Harley hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurocurrency Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 1 contract
Increase in Aggregate Commitment. The Borrower shall also have the right from time to time to increase the Aggregate Commitment up to a maximum of $600,000,000 by either adding new banks as Lenders (asubject to the Administrative Agent’s prior written approval of the identity of such new banks) At any time after or obtaining the Closing Date agreement, which shall be at such Lender’s or Lenders’ sole discretion, of this Agreementone or more of the then current Lenders to increase its or their Commitments. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit L attached hereto by the Borrower, the Administrative Agent may in its discretion (and the new bank or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. Each new Lender shall be entitled to require Borrower to deliver a Note to such Lender. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes Borrower and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide cause the new or existing Lenders providing such increase, by either funding more than its or their Percentage of new ratable Advances made on such date or purchasing shares of outstanding ratable Loans held by the other Lenders or a combination thereof, to hold its or their Percentage of all ratable Advances outstanding at the close of business on such day. The Lenders agree to cooperate in any required sale and purchase of outstanding ratable Advances to achieve such result. If such new or existing Lenders providing the increase purchase shares of outstanding ratable Loans held by the other Lenders on a date which is not the last day of the applicable Interest Period, Borrower will indemnify each Lender and for any loss or cost incurred by such Lender resulting from the payment of any breakage fees relating to Borrower copies of a ratable LIBOR Advance funded or maintained in connection with such a purchase. In no event will such new or existing Lenders providing the signature pages of such Subsequent Lender increase be required to fund or Increasing Lender, and purchase a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in Competitive Bid Loan or Swingline Loan to comply with this Section on such date. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $600,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLenders.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (First Industrial Realty Trust Inc)
Increase in Aggregate Commitment. (ai) At any time, but not more than twice, the Borrower may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (A) the Aggregate Commitment shall at no time after exceed $300,000,000 minus the Closing Date aggregate amount of all reductions in the Aggregate Commitment previously made pursuant to Section 2.5(b); (B) each such request shall be in a minimum amount of at least $10,000,000 and increments of $5,000,000 in excess thereof; and (C) the aggregate amount of such increases shall not exceed $50,000,000. Each request shall be made in a written notice given to the Agent and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Administrative Agent may in its discretion (which discretion and the Arranger shall not be arbitrarily or unreasonably exercised contrary to have the request of Borrower so long as the conditions set forth below are satisfied)right, without with the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Agent (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the Borrower, the Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate “Commitment and related Percentage of each Lender (which may be Acceptance” substantially in the form of a revised Schedule 1.1).
Exhibit F hereto, (bIII) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (IV) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Borrower. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its optionrequest for the commitment increase. If the commitment increase is cancelled pursuant to the immediately preceding sentence, elect the Borrower’s cancelled increase request shall not be counted towards the Borrower’s two increase requests permitted by the first sentence of this Section 2.5(c). Upon satisfaction of the conditions precedent to designate allany increase in the Aggregate Commitment, or any portion the Agent shall promptly advise the Borrower and each Lender of at least $50,000,000, the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to its outstanding Loans in the respective dollar amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s outstanding Loans shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the outstanding Loans purchased hereby shall equal the respective dollar amount necessary so that, from and after such payments, each Buying Lender’s outstanding Loans shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans. Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Agent. The Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Loans being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Loans, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the portion of the outstanding Loans being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders that will be providing such Term Commitmentsor the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Borrower shall execute a new or replacement Term Note payable hereby agrees to the order of compensate each such Subsequent Selling Lender for all losses, expenses and Increasing liabilities incurred by each Lender in connection with the amount sale and assignment of such Term Lender’s Percentage of any Eurodollar Loan hereunder on the Aggregate Term Commitmentterms and in the manner as set forth in Section 3.4.
Appears in 1 contract
Sources: Credit Agreement (Actuant Corp)
Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, Harley may request that the Aggregate Commitment be increased; provided that, (A) the Aggregate Commitment shall at no time exceed $1,200,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by Harley not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by Harley in the Commitment Increase Notice, the Global Administrative Agent may in its discretion and the Arrangers shall have the right, with the consent of Harley, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (which discretion shall not be arbitrarily or unreasonably exercised contrary 3) Business Days prior to the request proposed effective date of Borrower so long as the conditions set forth below are satisfied)requested increase, without Harley may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If Harley shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then Harley shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify Harley and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (except as specified the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) Harley, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit E hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantors shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to Harley. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify Harley of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers Harley may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise Harley and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the aggregate principal amount of its Syndicated Global Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. Harley hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurodollar Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 1 contract
Increase in Aggregate Commitment. (ai) At any time after the Closing Date of this Agreementtime, the Administrative Borrower may request that the Aggregate Commitment be increased; provided, however, that the Aggregate Commitment shall at no time exceed $1,500,000,000 minus the aggregate amount of all reductions in the Aggregate Commitment previously made pursuant to Section 2.5. Each request shall be made in a written notice given to the Agent may and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its discretion (which discretion shall not be arbitrarily or unreasonably exercised contrary to Commitment. In the request event that the increases of Borrower so long as the conditions Commitments set forth below are satisfied)in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, without the Agent shall have the right, with the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date, the Borrower may notify the Agent of any Eligible Assignee that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Agent (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the Borrower, the Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be Acceptance substantially in the form of Exhibit K hereto (a revised Schedule 1.1“Commitment and Acceptance”).
, (bIII) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental customary opinions in form and substance reasonably satisfactory to the Agent and (IV) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Borrower. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its optionrequest for the commitment increase. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, elect to designate all, or any portion the Agent shall promptly advise the Borrower and each Lender of at least $50,000,000, the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to its Outstanding Credit Exposure in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the increase Borrower desires to Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so designate as Term Commitmentsthat, the Lenders that will be providing from and after such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of payments, each such Subsequent Lender and Increasing Lender in the amount of such Term Buying Lender’s Percentage Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Term CommitmentOutstanding Credit Exposure. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the Agent. The Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the portion of the Outstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Borrower hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the sale and assignment of any Eurocurrency Loan hereunder on the terms and in the manner as set forth in Section 3.4.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (General Dynamics Corp)
Increase in Aggregate Commitment. The Borrower shall also have the right from time to time, provided no Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate Commitment up to a maximum of $400,000,000 by either adding new lenders as Lenders (asubject to the Administrative Agent's prior written approval of the identity of such new lenders) At or obtaining the agreement, which shall be at such Lender's or Lenders' sole discretion, of one or more of the then current Lenders to increase its or their Commitments. The Administrative Agent's approval of any time after new lenders shall not be unreasonably withheld or delayed. On the Closing Date effective date of this Agreementany such increase, the Borrower shall pay to the Administrative Agent any amounts due to it under the Fee Letter and to each lender providing such additional Commitment the up-front fee agreed to by the Borrower. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit G attached hereto by the Borrower, the Administrative Agent may in its discretion (and the new lender or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes Borrower and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of cause the signature pages of new or existing Lenders providing such Subsequent Lender increase, by either funding more than its or Increasing Lender, and a statement of the current Aggregate Commitment and related their Percentage of each new Advances made on such date or purchasing shares of outstanding Loans held by the other Lenders or a combination thereof, to hold its or their Percentage of all Advances outstanding at the close of business on such day. The Lenders agree to cooperate in any required sale and purchase of outstanding Advances to achieve such result, provided that Borrower shall be responsible for paying any amounts due under Section 3.4 to any Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, sells all or any portion of at least $50,000,000, a Fixed Rate Advance on a date which is not the last day of any increase in the Interest Period applicable thereto. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $400,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLenders.
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Increase in Aggregate Commitment. (a) At Provided no Default or Unmatured Default exists, upon notice to the Administrative Agent, the Parent may request one or more increases (the amount of any such increase being a "Commitment Increase") in the Aggregate Commitment which in the aggregate do not exceed $415,000,000 and do not cause the Aggregate Commitment to exceed $1,000,000,000. The Administrative Agent shall promptly give the Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) notice of such request. In its notice to the Administrative Agent, the Parent shall specify the time after period within which each Lender is requested to respond (which shall not be less than 10 Business Days from the Closing Date date of delivery of such notice to the Administrative Agent). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (any such Lender that agrees to increase its Commitment hereunder, an "Increasing Lender"). Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. No Lender's Commitment amount shall be increased without the consent of such Lender. The Administrative Agent shall notify the Parent of the Lenders' responses to each request made hereunder. If the Increasing Lenders agree to increase their respective Commitments by an aggregate amount in excess of the requested Commitment Increase, the requested Commitment Increase shall be allocated among such Increasing Lenders in proportion to their respective Commitments immediately prior to the Increase Date. To achieve the full amount of a requested increase, the Borrowers may also invite additional assignees (in accordance with and subject to the restrictions contained in Section 12.1) to become Lenders (any such Lender, an "Additional Lender"). The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.
(b) Any Commitment Increase shall become effective upon (i) the receipt by the Administrative Agent of (A) an agreement in form and substance satisfactory to the Administrative Agent signed by the Borrowers, each Increasing Lender and each Additional Lender, setting forth the new Commitments of each such Lender and setting forth the agreement of each Additional Lender to become a party to this AgreementAgreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrowers with respect to the Commitment Increase and such opinions of counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Loans to be made by each such Lender described in its discretion subsection (c) below, if applicable, and (iii) receipt by the Administrative Agent of a certificate (the statements contained in which discretion shall not be arbitrarily true) of an Authorized Officer of each Borrower certifying and attaching the resolutions adopted by such Borrower approving or unreasonably exercised contrary consenting to such Commitment Increase, and stating that both before and after giving effect to such Commitment Increase (A) no Default has occurred and is continuing, and (B) all representations and warranties in this Agreement are true and correct in all material respects, unless such representation or warranty relates to an earlier date, in which case they are true and correct as of such earlier date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of any Commitment Increase and the effective date thereof.
(c) Upon the effective date of any Commitment Increase, if any Advances (other than Swing Line Loans) are then outstanding, each Increasing Lender and each Additional Lender shall provide funds to the request Administrative Agent in the manner described in Section 2.2. The funds so provided by any such Lender shall be deemed to be a Revolving Loan made by such Lender on the date of Borrower so long as such Commitment Increase, an in an amount such that after giving effect to such Commitment Increase and the conditions set forth below are satisfied)Revolving Loans made on the date of such Commitment Increase, each Advance outstanding hereunder shall consist of Revolving Loans made by the Lenders ratably in accordance with each Lender's Pro Rata Share. Also upon giving effect to any Commitment Increase, each Lender shall participate in any outstanding Facility LC's (other than any Bank Guaranties) and Swing Line Loans ratably in accordance with its Pro Rata Share.
(d) Notwithstanding any provision contained herein to the contrary, from and after the date of any Commitment Increase and the making of any Revolving Loans on such date pursuant to subsection (c) above, all calculations and payments of interest on the Advances and payment of amounts owing with respect to other Outstanding Credit Exposure of each Lender shall take into account the actual Commitment of each Lender and the principal amount outstanding of each Revolving Loan made by such Lender during the relevant period of time.
(e) The Aggregate Commitments may be increased in accordance with, and to the extent permitted by, this Section 2.27, without the consent of the requisite Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide to each Lender and to Borrower copies of the signature pages of such Subsequent Lender or Increasing Lender, and a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in the Aggregate Commitment otherwise required under Section 2.8(a) as the Term Facility (or any portion of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term Commitment8.2.
Appears in 1 contract
Increase in Aggregate Commitment. (ai) At any time after prior to the Closing Date Termination Date, the U.S. Borrower may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (A) the Aggregate Commitment shall at no time exceed $1,400,000,000 and (B) each such request shall be in a minimum amount of at least $10,000,000. Each request shall be made in a written notice given to the Global Administrative Agent and the Lenders by the U.S. Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Syndicated Global Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment under this Agreement. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Syndicated Global Lender shall submit to the Global Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Global Administrative Agent being herein a “Lender Increase Notice”). Any Syndicated Global Lender which does not submit a Lender Increase Notice to the Global Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the U.S. Borrower in the Commitment Increase Notice, the Global Administrative Agent may in its discretion (which discretion and the Arrangers shall not be arbitrarily or unreasonably exercised contrary to have the request of Borrower so long as the conditions set forth below are satisfied)right, without with the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of U.S. Borrower, to allocate the amount of increases necessary to meet the Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Commitment Increase Notice, not later than three (3) Business Days prior to the proposed effective date of the requested increase, the U.S. Borrower may notify the Global Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be subject to the consent of the Global Administrative Agent (which consent shall not be unreasonably withheld). If the U.S. Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the U.S. Borrower shall be deemed to have reduced the amount of the Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Global Administrative Agent shall notify the U.S. Borrower and the Syndicated Global Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Syndicated Global Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), shall be subject to the following conditions:
conditions precedent: (iI) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (II) the U.S. Borrower, the Global Administrative Agent and each Subsequent Proposed New Lender is an Eligible Assignee;
(ii) except or Syndicated Global Lender that shall have agreed to the extent Borrower elects to designate all or provide a portion “Commitment” in support of such increase in the Aggregate Commitment as shall have executed and delivered a Term Facility as described “Commitment and Acceptance” substantially in Section 2.8(bthe form of Exhibit I hereto, (III) below, Borrower executes (A) a new Line Note payable counsels for the Borrowers and for the Guarantors shall have provided to the order Global Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Global Administrative Agent and (IV) the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as the Global Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Global Administrative Agent to the U.S. Borrower. No less than two (2) Business Days prior to the effective date of a Subsequent Lender in the increase of the Aggregate Commitment, the Global Administrative Agent shall notify the U.S. Borrower of the amount of its Commitment, or (B) a replacement Line Note payable the fee to be charged by the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this AgreementLenders, and each Increasing Lender executes and delivers the U.S. Borrower may, at least one (1) Business Day prior to such effective date, cancel its request for the Administrative Agent a new signature page commitment increase. Upon satisfaction of the conditions precedent to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing LenderAggregate Commitment, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Global Administrative Agent shall promptly provide to advise the U.S. Borrower and each Syndicated Global Lender and to Borrower copies of the signature pages effective date of such Subsequent Lender or Increasing Lender, and a statement of increase. Upon the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, effective date of any increase in the Aggregate Commitment under Section 2.8(athat is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) as For purposes of this clause (ii), (A) the Term Facility term “Buying Lender(s)” shall mean (or any portion 1) each Syndicated Global Lender the Effective Commitment Amount of at least $10,000,000 with respect to any subsequent increase which is greater than its Commitment prior to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an effective date of any increase in the Aggregate Commitment under Section 2.8(aand (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and must specify (B) the term “Selling Lender(s)” shall mean each Syndicated Global Lender whose Commitment is not being increased from that in effect prior to such increase in the Aggregate Commitment. Effective on the effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to the sum of (i) the aggregate principal amount of its Syndicated Global Loans outstanding at such time, plus (ii) an amount equal to its actual participation interest of its Pro Rata Share of the aggregate principal amount of Swing Line Loans and Syndicated Canadian Loans outstanding at such time (“Outstanding Credit Exposure”) in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Effective on the effective date of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the Aggregate Outstanding Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the aggregate of the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate Outstanding Credit Exposure”). Such amount shall be payable on the effective date of the increase Borrower desires in the Aggregate Commitment by wire transfer of immediately available funds to so designate as Term Commitmentsthe Global Administrative Agent. The Global Administrative Agent, in turn, shall wire transfer any such funds received to the Lenders Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Outstanding Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Outstanding Credit Exposure, except for participations which will be providing such Term Commitments. Borrower shall execute a new reduced or replacement Term Note payable extinguished (as applicable) upon payment to Selling Lender of an amount equal to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage portion of the Aggregate Term CommitmentOutstanding Credit Exposure being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the foregoing sentence, each such Buying Lender is buying such interest without recourse to the Selling Lender and has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Global Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The U.S. Borrower hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by such Selling Lender in connection with the sale and assignment of any Eurocurrency Rate Loan hereunder on the terms and in the manner as set forth in Section 3.4.
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Increase in Aggregate Commitment. The Borrower shall also have the right from time to time to increase the Aggregate Commitments up to a maximum of $700,000,000 (acomprised of Domestic Revolving Commitments of up to $600,000,000 and Global Revolving Commitments of up to $300,000,000, provided that the Aggregate Commitment cannot exceed $700,000,000) At any time after by either adding new banks as Lenders (subject to the Closing Date Administrative Agent’s prior written approval of this Agreementthe identity of such new banks) or obtaining the agreement, which shall be at such Lender’s or Lenders’ sole discretion, of one or more of the then current Lenders to increase its or their Commitments. Such increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in the form of Exhibit K attached hereto by the Borrower, the Administrative Agent may in its discretion (and the new bank or existing Lender providing such additional Commitment, a copy of which discretion shall not be arbitrarily or unreasonably exercised contrary forwarded to each Lender by the request Administrative Agent promptly after execution thereof. Each new Lender shall be entitled to require Borrower to deliver a Note to such Lender. On the effective date of Borrower so long as the conditions set forth below are satisfied), without the consent of the Lenders (except as specified in this Section 2.8), from time to time at the request of Borrower, increase the Aggregate Commitment by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”), subject to the following conditions:
(i) each Subsequent Lender is an Eligible Assignee;
(ii) except to the extent Borrower elects to designate all or a portion of such increase in the Aggregate Commitment Domestic Revolving Commitments and/or the Global Revolving Commitments as a Term Facility as described in Section 2.8(b) below, Borrower executes (A) a new Line Note payable to the order of a Subsequent Lender in the amount of its Commitment, or (B) a replacement Line Note payable to the order of an Increasing Lender in the amount of its new, increased Commitment;
(iii) each Subsequent Lender executes and delivers to the Administrative Agent a signature page to this Agreement, and each Increasing Lender executes and delivers to the Administrative Agent a new signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lenderapplicable, the Aggregate Commitment does not exceed $1,000,000,000;
(v) no Event of Default exists; and
(vi) no Lender shall be an Increasing Lender without the written consent of such Lender, which consent such Lender may withhold in its sole Borrower and absolute discretion. After the admission of any Subsequent Lender or increase in the Commitment of any Increasing Lender, the Administrative Agent shall promptly provide cause the new or existing Lenders providing such increase, by either funding more than its or their Domestic Percentage of new ratable Borrowings made on such date or purchasing shares of outstanding ratable Loans held by the other Lenders or a combination thereof, to hold its or their Domestic Percentage of all ratable Borrowings outstanding at the close of business on such day for such Class. The Lenders agree to cooperate in any required sale and purchase of outstanding ratable Borrowings to achieve such result. If such new or existing Lenders providing the increase purchase shares of outstanding ratable Domestic Revolving Loans held by the other Lenders on a date which is not the last day of the applicable Interest Period, Borrower will indemnify each Lender and for any loss or cost incurred by such Lender resulting from the payment of any breakage fees relating to Borrower copies of a ratable Eurocurrency Borrowing funded or maintained in connection with such a purchase. In no event will such new or existing Lenders providing the signature pages of such Subsequent Lender increase be required to fund or Increasing Lender, and purchase a statement of the current Aggregate Commitment and related Percentage of each Lender (which may be in the form of a revised Schedule 1.1).
(b) Borrower may, at its option, elect to designate all, or any portion of at least $50,000,000, of any increase in Competitive Bid Loan or Swingline Loan to comply with this Section on such date. In no event shall the Aggregate Commitment under Section 2.8(a) as exceed $700,000,000 without the Term Facility (or any portion approval of at least $10,000,000 with respect to any subsequent increase to the Aggregate Commitment after the Term Facility has been established), provided that each Subsequent Lender and Increasing Lender providing the Commitments so designated has agreed in writing to provide a Term Commitment or increase its Term Commitment. Any such election must be made by written notice to the Administrative Agent given along with Borrower’s request for an increase in the Aggregate Commitment under Section 2.8(a) and must specify the portion all of the increase Borrower desires to so designate as Term Commitments, the Lenders that will be providing such Term Commitments. Borrower shall execute a new or replacement Term Note payable to the order of each such Subsequent Lender and Increasing Lender in the amount of such Term Lender’s Percentage of the Aggregate Term CommitmentLenders.
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Sources: Unsecured Revolving Credit Agreement (First Industrial Realty Trust Inc)