Increase in Commitments. The Borrower may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Brinker International, Inc), Credit Agreement (Brinker International, Inc)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000, (ii) immediately after giving effect to any Commitment Increase, the aggregate Revolver Commitments shall not exceed $750,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V and (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under any letter agreement with the Administrative Agent or under any other letter agreement with a Lender acting as an arranger approved by the Administrative Agent, which shall be paid in accordance with their terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or any Lender, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Administrative Agent and each other Lender committing to the Commitment Increase, all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents consistent with those delivered or items as the Administrative Agent, the Additional Lender, Increasing Lender or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) through a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) such other documents or items that the Administrative Agent, any Additional Lender, any Increasing Lender or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Advances and correct of the types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Advances and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Revolver Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and the effectiveness of such increase (vii) Schedule 2.01 shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 2 contracts
Sources: Credit Agreement (Main Street Capital CORP), Credit Agreement (Main Street Capital CORP)
Increase in Commitments. The Borrower may at (a) At any time prior to the Facility Termination Date, the Borrowers shall have the ability, in consultation with the Agent and from time to time, by through written notice to the Administrative Agent Agent, substantially in the form of Exhibit D (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankIncrease Notice”), which may include any Bankto request increases in the Aggregate Commitment (each, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a “Requested Commitment Increase”); provided that (i) no Bank Lender shall have any obligation to increase its participate in any Requested Commitment pursuant to this paragraphIncrease, (ii) the aggregate principal amount of all new Commitments and such increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate500,000,000, (iii) each Increasing Banksuch Requested Commitment Increase shall be in a minimum principal amount of $50,000,000 or, if not already a Bank hereunderless, shall be subject the maximum remaining amount permitted pursuant to the approval of the Administrative Agent clause (which approval shall not be unreasonably withheldii) and above, (iv) any such increase shall be allocated among each Increasing BankBorrower’s Sublimit in accordance with the Increase Notice (it being understood that any such Sublimit changes shall not count as one of the eight Sublimit reallocations the Borrowers are permitted each fiscal year under Section 2.7(c)), if not already a Bank hereunder, (v) the other terms and documentation in respect of such Requested Commitment Increase shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form be reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, vi) no increase in the Total Commitments (Default or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Unmatured Default shall have occurred and be continuing or would result therefrom, and from the Administrative proposed Requested Commitment Increase.
(b) The Agent shall have received a certificate to that effect dated promptly give notice of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior Requested Commitment Increase to the effectiveness of any Accession Agreement, Lenders. Each Lender shall notify the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three Agent within ten (310) Business Days prior to the effectiveness (or such longer period of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as time which may be agreed upon by the Borrower Agent and the Administrative Borrowers and communicated to the Lenders) from the date of delivery of such notice to the Lenders whether or not it offers to increase its Commitment and, if so, by what amount. Any Lender not responding within such time period shall be deemed to have declined to offer to increase its Commitment. The Agent shall notify the Borrowers of the Lenders’ responses to ensure that each request made hereunder. The Borrowers shall have the proportion between right at their sole discretion to accept or reject in whole or in part any offered Commitment increase or at their own expense to solicit a Commitment from any third party financial institution reasonably acceptable to the Banks’ outstanding AdvancesAgent. Any such financial institution (if not already a Lender hereunder) shall become a party to this Agreement, after giving effect as a Lender pursuant to such increasea joinder agreement in form and substance reasonably satisfactory to the Agent and the Borrowers.
(c) Upon the completion of each Requested Commitment Increase, and their respective Commitments, after giving effect (i) entries in the accounts maintained pursuant to such increase, Section 2.15 will be re-establishedrevised to reflect the revised Commitments and Pro Rata Shares of each of the Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above), and (ii) subject to Section 2.23.1(ii), the effectiveness outstanding Revolving Loans will be reallocated on the effective date of such increase among the Lenders in accordance with their revised Pro Rata Shares and the Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required in connection with such reallocation as if such reallocation were a prepayment and (iii) the Maximum Sublimit of each Borrower shall be conditioned on increased in accordance with the implementation of such arrangements. This Section 2.17 Increase Notice (provided that no Borrower’s Maximum Sublimit shall supersede any provisions in Section 2.13 or 10.01 to exceed the contraryAggregate Commitment).
Appears in 2 contracts
Sources: Fourth Amendment to Second Amended and Restated Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Pepco Holdings Inc)
Increase in Commitments. The Borrower may at (a) At any time and from time to timetime prior to the Maturity Date, the Company may, by written notice to the Administrative Agent (which the Administrative Agent shall promptly deliver a copy furnish to each Lender in the Banks) executed by a Responsible Officer of the Borrower and applicable Tranche), request that one or more Persons (which shall include the Lenders in the applicable Tranche, as provided below) offer to increase their Commitments under any Tranche (if they are Lenders) or to make additional Commitments under any Tranche (if they are not already Lenders) (such increased and/or additional Commitments being, in the case of any Tranche, a “Tranche Increase”) under this paragraph (a), it being understood that if such offer is to be made by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 11.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld). The minimum aggregate amount of any Tranche Increase shall be $25,000,000 in the case of the US Tranche, $5,000,000 in the case of the Canadian Tranche, and $5,000,000 in the case of the UK Tranche. In no event shall the aggregate amount of all Tranche Increases pursuant to this paragraph (a) exceed $250,000,000. The Company shall offer each relevant Lender the opportunity to increase its applicable Tranche Commitment by its applicable Tranche Percentage of the proposed increased amount of any Tranche. Each Lender in such Tranche shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company’s notice, either agree to increase its applicable Tranche Commitment by all or a portion of the offered amount or decline to increase its applicable Tranche Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its applicable Tranche Commitment). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the relevant Lenders shall have agreed pursuant to the preceding sentence to increase their applicable Tranche Commitments by an aggregate amount less than the increase in the total Tranche Commitments in such Tranche requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”)institutions, which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) applicable Tranche Commitments or increase their existing applicable Tranche Commitments in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in equal to the unsubscribed amount. In the event that one or more of such notice, provided that (i) no Bank shall have any obligation Persons offer to increase its Commitment pursuant to this paragraphor enter into such Commitments, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during such Persons, the term of this Agreement shall not exceed $200,000,000 in the aggregateCompany, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of any other applicable Borrower and the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering agree as to the Administrative Agent a duly executed accession agreement amount of such Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in a form reasonably satisfactory to connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and the Borrower (any other Applicable Agent shall execute and deliver an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant appropriate amendment to this Section 2.17. Upon Agreement, which amendment shall specify, among other things, the effectiveness of procedures for reallocating any Accession Agreement to which any Increasing Bank outstanding Revolving Credit Exposure under the Tranche that is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. the Tranche Increase effected by such amendment.
(b) Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph or addition of a new Lender shall become effective unless under this Section unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (a) and (b) of Section 4.02 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer the chief financial officer of the BorrowerCompany, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to ensure that the proportion between corporate power and authority of the Banks’ outstanding Advances, applicable Borrowers to borrow hereunder after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Yellow Roadway Corp), Credit Agreement (Yellow Roadway Corp)
Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), cause the total Commitments to be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Commitments shall not exceed $1,250,000,000 minus any amount by which the Commitments shall have been reduced pursuant to Section 2.09. Such notice shall set forth the amount of the increase in the total Commitments and the date on which such increase is to become effective. The Company may also request in such notice that each Lender, within ten (10) Business Days of the date thereof, by written notice to the Company and the Administrative Agent, either agree to increase its Commitment (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice within such ten (10) Business Day period shall be deemed to have declined to increase its Commitment). Alternatively, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section clause (a) being called an “Increasing BankAugmenting Lender”; provided that no Augmenting Lender shall be an Ineligible Institution), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments or increase their existing Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) the Company and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. In addition, any Augmenting Lender that is organized under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date laws of such increase, the representations and warranties a jurisdiction outside of the Borrower and United States of America shall provide to the Guarantors set forth in this Agreement Administrative Agent, its name, address, tax identification number and/or such other information as shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and necessary for the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection comply with applicable “know your customer” and anti-money-money laundering rules and regulations, including, including without limitation, the PATRIOT Patriot Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any Any increase in the total Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase initially requested by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCompany.
Appears in 2 contracts
Increase in Commitments. The Borrower may at any time and from time to time, by written notice (a) Subject to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of terms and conditions set forth herein, the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraphthe right, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during with the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval consent of the Administrative Agent and the Issuing Banks (which approval shall such consent not to be unreasonably withheldwithheld or delayed), to cause from time to time an increase in the total amount of the Commitments (a “Commitment Increase”) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party by adding to this Agreement by completing one or more additional financial institutions that are not already Lenders hereunder and delivering to the Administrative Agent a duly executed accession agreement in a form that are reasonably satisfactory to the Administrative Agent and the Borrower Issuing Banks (an each a “Accession AgreementCI Lender”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant ) or by allowing one or more existing Lenders to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyincrease their respective Commitments; provided, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rightshowever, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless that (i) the Administrative Agent no Event of Default shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increaseoccurred which is continuing, (ii) no such Commitment Increase shall cause the total amount of the Commitments to exceed $1,250,000,000, (iii) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and (iv) if, on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans in accordance with Section 2.9(c).
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.9 hereto. The Administrative Agent shall give prompt notice to each Issuing Bank of its receipt of a Notice of Commitment Increase. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing such notice or would result therefrom, and on another date agreed to by the Administrative Agent shall have received a certificate to that effect dated and the Borrower (such date and executed referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a Financial Officer prepayment by the Borrower pursuant to Section 2.3, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, aggregate principal amount of Loans as a result of borrowings made after giving effect to the extent there are outstanding Advances, Commitment Increase on such Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the parties hereto Commitment Increase that does not increase its respective Commitment as a result of the Commitment Increase and whose relative percentage of the total amount of the Commitments shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, reduced after giving effect to such increase, Commitment Increase; and their respective Commitments, (3) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase).
Appears in 2 contracts
Sources: Credit Agreement (Cimarex Energy Co), Credit Agreement (Cimarex Energy Co)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right, without the consent of the Lenders, the Administrative Agent or the Issuing Banks, to cause from time to time, by written notice to time an increase in the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer total amount of the Borrower and Commitments (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if are not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) Lenders hereunder and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form that are reasonably satisfactory to the Administrative Agent and the Borrower Issuing Banks (an each a “Accession AgreementCI Lender”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant ) or by allowing one or more existing Lenders to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyincrease their respective Commitments; provided, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rightshowever, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless that (i) the Administrative Agent no Event of Default shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increaseoccurred which is continuing, (ii) no such Commitment Increase shall cause the total amount of the Commitments to exceed $3,000,000,000, (iii) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and (iv) if, on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.9 attached hereto. The Administrative Agent shall give prompt notice to each Issuing Bank of its receipt of a Notice of Commitment Increase. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing such notice or would result therefrom, and on another date agreed to by the Administrative Agent shall have received a certificate to that effect dated and the Borrower (such date and executed referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a Financial Officer prepayment by the Borrower pursuant to Section 2.3, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, aggregate principal amount of Loans as a result of borrowings made after giving effect to the extent there are outstanding Advances, Commitment Increase on such Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the parties hereto Commitment Increase that does not increase its respective Commitment as a result of the Commitment Increase and whose relative percentage of the total amount of the Commitments shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, reduced after giving effect to such increase, Commitment Increase; and their respective Commitments, (3) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase).
Appears in 2 contracts
Sources: Credit Agreement (Noble Energy Inc), Credit Agreement (Noble Energy Inc)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right to cause from time to time, time an increase in the Commitments of the Lenders by written notice up to $150,000,000 in the aggregate (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are consented to by the Global Administrative Agent and the Australian Administrative Agent (which consent shall promptly deliver a copy to the Banksnot be unreasonably withheld or delayed) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called an each a “Increasing BankCI Lender”); provided, which may include any Bankhowever, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) at the time of the Commitment Increase, no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregateU.S.$450,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Lender’s Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s prior written consent (which approval shall not consent may be unreasonably withheld) given or withheld in such Lender’s sole and absolute discretion), (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans, and (v) each CI Lender shall execute a Notice of Commitment Increase and deliver such executed notice to the Australian Administrative Agent.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Global Administrative Agent and the Guarantors Australian Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit I attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Global Administrative Agent and the Australian Administrative Agent) or on another date agreed to by the Global Administrative Agent, the Australian Administrative Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Australian Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromon such Commitment Increase Effective Date, and (ii) the Australian Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall have received constitute a certificate prepayment by the Borrower pursuant to that effect dated such date and executed by a Financial Officer Section 2.10, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” the reallocation of any outstanding Loans.
(d) Each Commitment Increase shall become effective on its Commitment Increase Effective Date and anti-money-laundering rules upon such effectiveness (i) the Global Administrative Agent and regulations, including, without limitation, the PATRIOT Act, Australian Administrative Agent shall record in each case at least three (3) Business Days prior its records the CI Lender’s information as provided in the Notice of Commitment Increase and pursuant to an Administrative Questionnaire in form satisfactory to the effectiveness of any Accession Agreement Global Administrative Agent and (y) at least three (3) Business Days prior the Australian Administrative Agent that shall be executed and delivered by each CI Lender to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower Global Administrative Agent and the Australian Administrative Agent on or before the Commitment Increase Effective Date, (ii) Schedule 2.1 hereof shall be amended and restated to ensure set forth all Lenders (including any CI Lenders) that the proportion between the Banks’ outstanding Advances, will be Lenders hereunder after giving effect to such increaseCommitment Increase (which shall be set forth in Annex I to the applicable Notice of Commitment Increase) and the Australian Administrative Agent shall distribute to each Lender (including each CI Lender) a copy of such amended and restated Schedule 2.1, and their respective Commitments, after giving effect to (iii) each CI Lender identified on the Notice of Commitment Increase for such increase, will be re-established, and the effectiveness of such increase Commitment Increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrarya “Lender” for all purposes under this Agreement.
Appears in 2 contracts
Sources: Syndicated Facility Agreement, Syndicated Facility Agreement (Apache Corp)
Increase in Commitments. The Borrower Howmet may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) Agent, executed by a Responsible Officer of the Borrower Howmet and one or more financial institutions (any such financial institution referred to in this Section being called an a “Increasing BankProspective Lender”), which may include any BankLender, cause the Commitments of the Increasing Banks Prospective Lenders to be increased (or cause Commitments to be extended by the Increasing Banks to extend new CommitmentsProspective Lenders, as the case may be) in an amount for each Increasing Bank (which shall not be less than $10,000,000) Prospective Lender set forth in such notice; provided, provided however, that (i) the amount of any such increase in the Commitments shall be no Bank shall have any obligation to increase its Commitment pursuant to this paragraphless than $25,000,000, (ii) all new Commitments and the sum of the aggregate amount of increases in existing Commitments becoming effective under this paragraph Section 2.20, during the term of this Agreement Agreement, shall not exceed $200,000,000 in the aggregate500,000,000, (iii) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Increases in Commitments and increases in new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto, on the date specified in the applicable notices notice delivered pursuant to this Section 2.17and (B) in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Prospective Lender is a party, (i) such Increasing Bank Prospective Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank Lender hereunder and (ii) Schedule 2.01(a) shall be deemed to have been amended to reflect the Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01(a) shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no increase in the Total aggregate Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective under this Section unless (i) the Administrative Agent shall have received (A) a written opinion reasonably satisfactory to the Administrative Agent and the Lenders of Delaware counsel, as Counsel of Howmet, addressed to the Administrative Agent and the Lenders and (B) documents consistent with those delivered under paragraph (a) of Section 3.01(a)(ii) through (v), 4.04 as to the corporate power and authority of Howmet to borrow hereunder after giving effect to such increase, increase and (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (b) and (c) of Section 4.02 shall be true and correct satisfied (with all references in all material respects and no Default shall have occurred and such paragraphs to a Borrowing being deemed to be continuing or would result therefrom, references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerHowmet. Following any increase of a Lender’s Commitment or any extension of a new Commitment pursuant to this paragraph, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days Loans outstanding prior to the effectiveness of any Accession such increase or extension shall continue outstanding until the ends of the respective Interest Periods applicable thereto, and shall then be repaid or refinanced with new Loans made pursuant to Section 2.01; provided that notwithstanding anything to the contrary in this Agreement, the Borrower conditions to borrowing set forth in Section 4.02 shall have provided not apply to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, new Loans to the extent there they are outstanding Advancesin a principal amount not greater than that of the Loans being refinanced. Notwithstanding anything to the contrary in this Agreement, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase no Lender shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 required to the contrarybe a Prospective Lender.
Appears in 2 contracts
Sources: Credit Agreement (Howmet Aerospace Inc.), Revolving Credit Agreement (Howmet Aerospace Inc.)
Increase in Commitments. The Borrower may at At any time following the Agreement Date and from time prior to timethe Termination Date the aggregate amount of the Commitments may, at the option of the Borrower, be increased by written notice an amount not in excess of $200,000,000, either by new Banks establishing such additional Commitments or by one or more then-existing Banks increasing their Commitments (each such increase by either means, a "Commitment Increase," and each such new Bank or Bank increasing its Commitment, an "Additional Commitment Bank"); provided that (a) each Additional Commitment Bank shall be reasonably acceptable to the Administrative Agent (which shall promptly deliver a copy to and the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Issuing Bank, cause (b) no Default shall exist immediately prior to or after the Commitments effective date of the Increasing Banks to such Commitment Increase, (c) each such Commitment Increase shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth 10,000,000 and multiples of $5,000,000 in such noticeexcess thereof, provided that (id) no such Commitment Increase shall become effective unless and until the Borrower, the Administrative Agent, the Issuing Bank and the Additional Commitment Banks shall have any obligation to executed and delivered an agreement substantially in the form of Schedule 1.09 (a "Commitment Increase Supplement"), and (d) the increase its Commitment pursuant to this paragraph, (ii) all new in the Total Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in 200,000,000. On the aggregateeffective date of such Commitment Increase, each Additional Commitment Bank shall purchase, for assignment, from each other existing Bank the portion of such other Bank's RC Loans and Letter of Credit Participations outstanding at such time such that, after giving effect to such assignments, the respective aggregate amount of RC Loans and Letter of Credit Participations of each Bank shall be equal to such Bank's pro rata share (iiibased on the total Commitments, as increased pursuant hereto) of the aggregate RC Loans and Letter of Credit Participations outstanding. The purchase price for the RC Loans and Letter of Credit Participations so assigned shall be the principal amount of the RC Loans and unreimbursed Drawings so assigned plus the amount of accrued and unpaid interest thereon on the date of assignment. Upon payment of such purchase price, each Increasing Bankother Bank shall be automatically deemed to have sold and made such an assignment to such Additional Commitment Bank and shall, to the extent of the interest assigned, be released from its obligations under this Agreement, and such Additional Commitment Bank shall be automatically deemed to have purchased and assumed such an assignment from each other Bank and, if not already a Bank hereunder, shall be subject a party hereto and, to the approval extent of the Administrative Agent (which approval shall not be unreasonably withheld) interest assigned, have the rights and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to under this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Xcel Energy Inc), 364 Day Credit Agreement (Xcel Energy Inc)
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, APA shall have the right to cause from time to time, time an increase in the Commitments of the Lenders by written notice up to US$500,000,000 in the aggregate (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are consented to by the Administrative Agent (which consent shall promptly deliver a copy to the Banksnot be unreasonably withheld or delayed) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called an each a “Increasing BankCI Lender”); provided, which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided however that (i) at the time of, and after giving effect to, the Commitment Increase, no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregateUS$2,300,000,000, (iii) each Increasing no Lender’s Commitment or Issuing Bank, if not already a Bank hereunder, ’s Letter of Credit Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s or such Issuing Bank’s, as applicable, prior written consent (which approval shall not consent may be unreasonably withheld) given or withheld in such Lender’s or such Issuing Bank’s sole and absolute discretion), (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, any Loans have been funded, then Borrower shall be obligated to pay any breakage fees or costs in connection with the representations reallocation of such outstanding Loans, and warranties (v) each CI Lender shall execute a Notice of Commitment Increase and deliver such executed notice to the Borrower Administrative Agent.
(b) Any Commitment Increase must be requested by written notice from APA to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit G attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Administrative Agent) or on another date agreed to by the Administrative Agent and APA (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by Borrower pursuant to Section 2.10, ratably in accordance with the respective principal amounts thereof, of the principal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) Borrower shall be true responsible to pay to each Lender any breakage fees or costs in connection with the reallocation of any outstanding Loans.
(d) Each Commitment Increase shall become effective on its Commitment Increase Effective Date and correct upon such effectiveness (i) the Administrative Agent shall record in its records the CI Lender’s information as provided in the Notice of Commitment Increase and pursuant to an Administrative Questionnaire in form satisfactory to the Administrative Agent that shall be executed and delivered by each CI Lender to the Administrative Agent on or before the Commitment Increase Effective Date, (ii) Schedule 2.1 hereof shall be amended and restated to set forth all material respects and no Default Lenders (including any CI Lenders) that will be Lenders hereunder after giving effect to such Commitment Increase (which shall have occurred and be continuing or would result therefrom, set forth in Annex I to the applicable Notice of Commitment Increase) and the Administrative Agent shall have received distribute to each Lender (including each CI Lender) a certificate to that effect dated copy of such date amended and executed by a Financial Officer of the Borrowerrestated Schedule 2.1, and (iii) (x) upon each CI Lender identified on the reasonable request Notice of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to Commitment Increase for such Bank, and such Bank Commitment Increase shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customerLender” for all purposes under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAgreement.
Appears in 2 contracts
Sources: Credit Agreement (Apache Corp), Credit Agreement (APA Corp)
Increase in Commitments. (a) The Borrower may Company shall have the right, at any time and from time to time, time after the Closing Date but prior to the date 30 days prior to the Commitment Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, the aggregate of all Commitment Increases effected after the Closing Date shall not exceed $200,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by the Company unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval Agent, the Swingline Lender and the Fronting Bank shall not be unreasonably withheldwithheld or delayed) and (iv) the Borrowers and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Lender Joinder Agreement by completing and delivering to together with all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower Borrowers, to evidence the Commitment of such Additional Lender and its status as a Lender hereunder.
(an c) If the aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Accession Agreement”). New Commitments and increases in Commitments Commitment Increase Date,” which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than 30 days prior to the Commitment Termination Date) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such increase and the Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. effect such Commitment Increase.
(d) Notwithstanding the foregoinganything set forth in this Section 2.21, no increase in the Total aggregate Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.21 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed Lender Joinder agreement together with those delivered all other documentation required by the Administrative Agent and the Borrowers pursuant to Section 2.21(b);
(B) an instrument, duly executed by each Borrower and the Guarantor, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement and the other Credit Documents;
(C) through a certificate of the secretary or an assistant secretary of each Borrower, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of such Borrower approving or consenting to such increaseCommitment Increase;
(D) a certificate of an Authorized Officer of the Company, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth Borrowers contained in this Agreement shall be and the other Credit Documents are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects), both immediately before and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that after giving effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness Commitment Increase and any Borrowings or Letters of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested Credit issued in connection with applicable “know your customer” therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and anti-money-laundering rules and regulationscorrect in all material respects (or if qualified by materiality or Material Adverse Effect, including, without limitation, the PATRIOT Actin all respects), in each case at least three (3) Business Days prior to the effectiveness as of any Accession Agreement such date), and (yz) at least three (3) Business Days prior to the effectiveness no Default or Event of any Accession AgreementDefault has occurred and is continuing, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower both immediately before and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, Commitment Increase (including any Borrowings or Letters of Credit issued in connection therewith and their respective the application of the proceeds thereof);
(ii) If there is a non-ratable increase in the aggregate Commitments, each outstanding Syndicated Letter of Credit shall have been amended giving effect to the reallocation of the Commitments or, if required, returned by each respective beneficiary to the Administrative Agent and cancelled and/or exchanged for a new or amended Syndicated Letter of Credit giving effect to the reallocated Commitments; and
(iii) The conditions precedent set forth in Section 3.2 shall have been satisfied.
(e) On the Commitment Increase Date, to the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Commitments, (i) all then outstanding Revolving Loans (the “Outstanding Loans”) shall, to the extent not then maintained as Base Rate Loans, automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, each Borrower may, if it so requests, convert any such Base Rate Loans into SOFR Loans in the amounts and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.12, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s Ratable Share, calculated after giving effect to the Commitment Increase, of the Outstanding Loans and (z) such increase▇▇▇▇▇▇’s Ratable Share, will calculated without giving effect to the Commitment Increase, of the Outstanding Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s Ratable Share, calculated without giving effect to the Commitment Increase, of the Outstanding Loans and (z) such Lender’s Ratable Share, calculated after giving effect to the Commitment Increase, of the amount of the Outstanding Loans, (v) the Lenders shall be re-establisheddeemed to hold the Outstanding Loans ratably in accordance with their respective Commitment (calculated after giving effect to the Commitment Increase), (vi) each Borrower shall pay all accrued but unpaid interest on the Outstanding Loans as of the Commitment Increase Date to the Lenders entitled thereto, and (vii) Schedule 1.1(a) shall automatically be amended to reflect the effectiveness Commitments of such increase all Lenders after giving effect to the Commitment Increase. The conversion of SOFR Loans pursuant to clause (i) above shall be conditioned subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.19 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 2 contracts
Sources: Credit Agreement (Unum Group), Credit Agreement (Unum Group)
Increase in Commitments. The (a) Provided there exists no Default or Event of Default and prior to the date thereof the Borrower may at has not made any time and from time to timevoluntary reduction of the Aggregate Revolving Credit Commitments, by written upon not less than five Business Days' prior notice to the Administrative Agent (which shall promptly deliver notify the Lenders), the Borrower may, on a copy one-time basis on any Business Day prior to the Banks) executed date that is the second anniversary of the Closing Date, increase the Aggregate Commitments by a Responsible Officer principal amount not exceeding the Maximum Increase Amount, provided that such increase with respect to any Facility must be made in a minimum amount of $5,000,000 or integral multiples of $1,000,000 in excess thereof. Such notice shall indicate (i) the amount of such increase, (ii) whether such increase is to be to the Revolving Credit Facility, the Term Loan A Facility, the Term Loan B Facility, or a specified combination thereof (and if to more than one Facility, the amount of the Borrower and one or more financial institutions (any aggregate increase to be allocated to each such financial institution referred to in this Section being called an “Increasing Bank”Facility), which may include any Bank(iii) the identity of those Persons, cause each of whom meets the Commitments definition of an Eligible Assignee (the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth Borrower's approval being deemed given by inclusion of such Person in such notice), provided who will be accepting the increase in the Aggregate Commitments (the "Increase Lenders"), (iv) the Facility and the amount of each such Person's commitment, and (v) the proposed effective date of such increase (all of which must occur on the same date, the "Increase Effective Date"). The Borrower may, but is not required to, offer the existing Lenders an opportunity to commit to any such increase, it being understood that (i) no Bank shall existing Lender will have any obligation to commit to any such increase. In the event that the aggregate commitments from the Increase Lenders exceed either the aggregate proposed increase its Commitment pursuant to this paragraphor the proposed increase for any Facility, (ii) all new Commitments the Borrower and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall will mutually determine the identity of those Persons who will become Increase Lenders and the final allocation to each of them. Each Increase Lender that is not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall Lender hereunder prior to such time will become a party Lender hereunder pursuant to this Agreement by completing and delivering to the Administrative Agent a duly executed accession joinder agreement in a form reasonably and substance satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”)its counsel. New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness The Credit Extension of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments Term Loan A Facility or the Term Loan B Facility hereunder will be made in a manner, and upon the satisfaction of conditions, reasonably similar to those required for the Credit Extension of the Term Loan B Facility with appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
(or b) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in the Commitment sufficient copies for each Lender) signed by a Responsible Officer of any Bank) pursuant to this paragraph shall become effective unless such Loan Party (i) certifying and attaching the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(iiresolutions adopted by such Loan Party approving or consenting to such increase, and (ii) through (v)in the case of the Borrower, certifying that, before and after giving effect to such increase, (iiA) the representations and warranties contained in Article V and the other Loan Documents are true and correct on and as of the effective date Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such increaseearlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of the Borrower and the Guarantors set forth in this Agreement Section 5.05 shall be true deemed to refer to the most recent statements furnished pursuant to subsections (a) and correct in all material respects (b), respectively, of Section 6.01, and (B) no Default shall have occurred and be continuing or Event of Default exists or would result therefromfrom such increase (giving pro forma effect thereto).
(c) Upon the exercise of this Section 2.15, and as conditions to the effectiveness thereof, (i) a revised Schedule 1.02
(a) will be provided reflecting such exercise (and all assignments since the Closing Date), (ii) each Increase Lender will make those representations and warranties made by an Eligible Assignee in connection with an assignment pursuant to Section 10.07, in a manner acceptable to the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer Agent, (iii) each Guarantor will reaffirm its obligations under the applicable Guaranty in connection with the increased principal amount of the Borrowerapplicable Facilities, and (iiiiv) (x) upon the reasonable request amortization of any Bank made the Term Loan A Facility pursuant to Section 2.08 will be adjusted as necessary to provide at least five (5) days prior each date set forth therein for a payment of principal in an amount which is a percentage of the Outstanding Amount of the Term Loan A after its increase as provided in this Section 2.15 that is equal to the effectiveness ratio determined by the payment set forth opposite such date as of the Closing Date to the Outstanding Amount of the Term Loan A on the Closing Date.
(d) In the event that any Accession Agreementamount of the increase in the Aggregate Commitments is to be to the Term Loan B Facility (the "TLB Increase Amount"), the Borrower shall have provided to such Bank, Applicable Margin for Eurodollar Rate Segments and such Bank Base Rate Segments of the TLB Increase Amount shall be reasonably satisfied withequivalent to the Applicable Margin then applicable to Eurodollar Rate Segments and Base Rate Segments of the initial Term Loan B advanced on the Closing Date; provided, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Acthowever, in each case at least three the event the Applicable Margin required successfully to arrange the TLB Increase Amount (3the "TLB Increase Amount Applicable Margin") Business Days prior is greater than the Applicable Margin then applicable to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior Term Loan B, then the Applicable Margin with respect to the effectiveness entire Term Loan B, including the TLB Increase Amount, shall be increased to equal the TLB Increase Amount Applicable Margin effective as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of the TLB Increase Amount; provided further that if the TLB Increase Amount is issued at a discount or with payment of fees, the Term Loan B Lenders of the initial Term Loan B advanced on the Closing Date shall be compensated in an economically equivalent manner. It is understood that any increase in the Commitments Applicable Margin pursuant to this Section 2.17, the first proviso in the preceding sentence and any compensation to be made in connection with a discount or fee paid with respect to the extent there are outstanding Advances, TLB Increase Amount shall only apply to the parties hereto shall implement such arrangements as may be agreed upon by Term Loan B Facility on and after the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. Increase Effective Date.
(e) This Section 2.17 2.15 shall supersede any provisions in Section 2.13 Sections 2.14 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to timetime after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Commitments (each such requested increase, a “Commitment Increase”), by written having one or more existing Lenders increase their respective Commitments then in effect (each, an “Increasing Lender”), by adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $300,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $75,000,000, (iii) no Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the financial covenants contained in Article VII, and (v) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (which 10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall promptly deliver a copy have priority over Additional Lenders to the Banksparticipate in such requested Commitment Increase if it provides written notice of its election to participate within ten (10) executed by a Responsible Officer Business Days of the Administrative Agent’s receipt of such notice. Such notice from the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause shall specify the Commitments requested amount of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank Commitment Increase. No Lender shall have any obligation to increase its become an Increasing Lender. Any fees paid by the Borrower for a Commitment pursuant Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or Wachovia, (iii) each Increasing Bank, if not already a Bank hereunderas Arranger, shall be subject for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.20 shall be construed to obligate the approval of Borrower to pay any fee for a Commitment Increase to an Increasing Lender, an Additional Lender, the Administrative Agent or Wachovia, as Arranger.
(which approval shall not b) Each Additional Lender must be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement approved in writing by completing and delivering to the Administrative Agent and the Issuing Lender. The Borrower and each Additional Lender shall execute a duly executed accession agreement joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in a Section 2.20(d)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.20(e).
(c) If the aggregate Commitments are increased in accordance with this Section 2.20, the Borrower (an in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Accession Agreement”Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). New Commitments The Administrative Agent shall promptly notify the Lenders of such increase and increases the Commitment Increase Date.
(d) Notwithstanding anything set forth in Commitments this Section 2.20 to the contrary, the Borrower shall become effective not incur any Revolving Loans pursuant to any Commitment Increase (and no Commitment Increase shall be effective) unless the conditions set forth in Section 2.20(a) as well as the following conditions precedent are satisfied on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(iithe following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) through an amendment to this Agreement signed by each Lender, including without limitation Increasing Lenders (vif any) and Additional Lenders (if any), giving effect setting forth the reallocation of Commitments referred to in Section 2.20(e), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(b);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of a Financial Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in Article VII, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested;
(ii) In the case of any Borrowing of Revolving Loans in connection with such Commitment Increase for the purpose of funding a Permitted Acquisition, the applicable conditions set forth in this Agreement with respect to Permitted Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and correct of the Types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Loans, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Loans and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and the effectiveness of such increase (vii) Schedule 1.1 shall be conditioned amended to reflect the Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Increase in Commitments. The (a) Borrower may at any time and from time shall have the option, without the consent of the Lenders, to timecause a single increase in the Term Commitment by adding, by written notice subject to the prior approval of Administrative Agent (which shall promptly deliver a copy such approval not to the Banks) executed by a Responsible Officer of the Borrower and be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (any such financial institution referred collectively, the “New Term Lenders”) or by allowing one or more Lenders to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new increase their respective Term Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that however that: (i) prior to and after giving effect to the increase, no Bank Default or Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred hereunder and be continuing, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during no such increase shall cause the term of this Agreement shall not Term Commitment to exceed $200,000,000 in the aggregate725,000,000, (iii) each Increasing Bankno Lender’s Term Commitment shall be increased without such Lender’s consent, (iv) such increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Term Lenders, if any, and Lenders increasing their Term Commitments, if any, and which shall indicate the amount and allocation of such increase in the Term Commitment and the effective date of such increase (the “Term Loan Increase Effective Date”), and (v) Borrower shall use all proceeds of such increase (A) to finance all or a portion of the purchase price of the TXU Fuel Acquisition and (B) to pay the out-of-pocket expenses incurred and fees payable in respect of the TXU Fuel Acquisition and this Agreement. Subject to the terms and conditions hereof (including Section 10.14) and provided that the aggregate amount of all Term Loans does not already exceed the total Term Commitment, (i) each New Lender agrees to make a Bank hereunderTerm Loan to Borrower on the Term Loan Increase Effective Date in the amount of such Lender’s Term Commitment set forth on the revised Lender Schedule, and (ii) each existing Lender agrees to make a Term Loan to Borrower on the Term Loan Increase Effective Date in the amount of the increase, if any, in such Lender’s Term Commitment.
(b) Borrower shall be have the option, without the consent of the Lenders, from time to time to cause one or more increases in the Revolver Commitment by adding, subject to the prior approval of the Administrative Agent (which such approval shall not to be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (collectively, the “New Revolver Lenders”, and together with the New Term Lenders, the “New Lenders”) or by allowing one or more Lenders to increase their respective Revolver Commitments; provided however that: (i) prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (ii) no such increase shall cause the Revolver Commitment to exceed $225,000,000, (iii) no Lender’s Revolver Commitment shall be increased without such Lender’s consent, and (iv) each Increasing Banksuch increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Revolver Lenders, if not already a Bank hereunderany, and Lenders increasing their Revolver Commitments, if any, and which shall become a party indicate the amount and allocation of such increase in the Revolver Commitment and the effective date of such increase (the “Revolver Loan Increase Effective Date”). Borrower shall borrow and prepay Revolver Loans on each Revolver Loan Increase Effective Date (and pay any additional amounts required pursuant to this Agreement by completing and delivering Section 3.6) to the extent necessary to keep the outstanding Revolver Loans of each Lender ratable with such Lender’s revised Revolver Percentage after giving effect to any nonratable increase in the Revolver Commitments under this Section 2.13(b).
(c) As a condition precedent to each increase pursuant to subsections (a) and (b) above, Borrower shall deliver to Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to certificate of each Restricted Person dated as of the Administrative Agent and the Borrower Term Loan Increase Effective Date or Revolver Loan Increase Effective Date, as applicable (each an “Accession AgreementIncrease Effective Date”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness , signed by a Co-Chief Executive Officer of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Restricted Person (i) certifying and attaching the Administrative Agent resolutions adopted by such Restricted Person approving or consenting to such increase, (ii) certifying that each of the conditions to such increase set forth in Section 2.13(a) or (b), as applicable, shall have received documents consistent with those delivered under Section 3.01(a)(iioccurred and been complied with, and (iii) through (v)certifying that, before and after giving effect to such increase, (iiA) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents made by it are true and correct in all material respects on and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer as of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Increase Effective Date after giving effect to such increase, except to the extent that such representations and their respective Commitmentswarranties specifically refer to an earlier date, after giving effect to in which case they were true and correct in all material respects as of such increase, will be re-establishedearlier date, and (B) no Default or Event of Default exists.
(d) On each Increase Effective Date, Administrative Agent shall provide to Borrower and each Lender a revised Lender Schedule reflecting the effectiveness of such increase shall be conditioned on changes, as applicable, in the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to Revolver Commitment and/or the contrary.Term Commitment, each Lender’s Revolver Percentage, and/or each Lender’s Percentage Share resulting from such
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to timetime after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Commitments (each such requested increase, a “Commitment Increase”), by written having one or more existing Lenders increase their respective Commitments then in effect (each, an “Increasing Lender”), by adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender”), or a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $300,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $100,000,000, (iii) no Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (v) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (which 10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall promptly deliver a copy have priority over Additional Lenders to the Banksparticipate in such requested Commitment Increase if it provides written notice of its election to participate within ten (10) executed by a Responsible Officer Business Days of the Administrative Agent’s receipt of such notice. Such notice from the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause shall specify the Commitments requested amount of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank Commitment Increase. No Lender shall have any obligation to increase its become an Increasing Lender. Any fees paid by the Borrower for a Commitment pursuant Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or ▇▇▇▇▇ Fargo, (iii) each Increasing Bank, if not already a Bank hereunderas Arranger, shall be subject for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.20 shall be construed to obligate the approval of Borrower to pay any fee for a Commitment Increase to an Increasing Lender, an Additional Lender, the Administrative Agent either Arranger.
(which approval shall not b) Each Additional Lender must be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement approved in writing by completing and delivering to the Administrative Agent and the Issuing Lender. The Borrower and each Additional Lender shall execute a duly executed accession agreement joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in a Section 2.20(d)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.20(e).
(c) If the aggregate Commitments are increased in accordance with this Section 2.20, the Borrower (an in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Accession Agreement”Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). New Commitments The Administrative Agent shall promptly notify the Lenders of such increase and increases the Commitment Increase Date.
(d) Notwithstanding anything set forth in Commitments this Section 2.20 to the contrary, the Borrower shall become effective not incur any Revolving Loans pursuant to any Commitment Increase (and no Commitment Increase shall be effective) unless the conditions set forth in Section 2.20(a) as well as the following conditions precedent are satisfied on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(iithe following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) through an amendment to this Agreement signed by the Increasing Lenders (vif any) and Additional Lenders (if any), giving effect setting forth the reallocation of Commitments referred to in Section 2.20(e), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(b);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of a Financial Officer of the Borrower, certifying that (iix) on the effective date of such increase, the all representations and warranties of the Borrower and the Subsidiary Guarantors set forth contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Commitment Increase Date (except to the extent such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all material respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (z) no Default shall have or Event of Default has occurred and be continuing is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or would result therefromopinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have received reasonably requested;
(ii) In the case of any Borrowing of Revolving Loans in connection with such Commitment Increase for the purpose of funding a certificate Permitted Acquisition, the applicable conditions set forth in this Agreement with respect to that effect dated such date and executed by a Financial Officer Permitted Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Borrower, and Revolving Loans (iiithe “Initial Loans”) (x) upon the reasonable request of any Bank made at least five (5) days immediately prior to giving effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolving Loans (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Loans and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and the effectiveness of such increase (vii) Schedule 1.1 shall be conditioned amended to reflect the Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Increase in Commitments. The Borrower may (a) Platinum Holdings shall have the right, at any time and from time to time, time after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the Total Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called an each, and “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, (y) the Total Commitments shall not exceed $450,000,000 and (z) the aggregate of all Commitment Increases effected after the Restatement Effective Date shall not exceed $150,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by Platinum Holdings unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) and (iv) Platinum Holdings and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Agreement by completing and delivering to joinder agreement together with all such other documentation as the Administrative Agent a duly executed accession agreement and Platinum Holdings may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and Platinum Holdings, to evidence the Borrower Commitment of such Additional Lender and its status as a Lender hereunder.
(an c) In connection with each Commitment Increase, the Administrative Agent and Platinum Holdings shall determine the effective date (the “Accession AgreementCommitment Increase Date”). New Commitments and increases in Commitments , which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than 30 days prior to the Commitment Termination Date, and the final allocation of such Commitment Increase. The Administrative Agent shall promptly notify Platinum Holdings and the Lenders of the final allocation of such Commitment Increase and the Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.19 to all obligations of a Bank hereunder. Notwithstanding the foregoingcontrary, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.19 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed joinder agreement together with those delivered all other documentation required by the Administrative Agent pursuant to Section 2.19(b);
(B) an instrument, duly executed by each Credit Party, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement, the Security Documents and the other Credit Documents to which it is a party and the validity and continued effect of the Liens granted in favor of the Administrative Agent thereunder;
(C) through a certificate of the secretary or an assistant secretary of each Credit Party, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of such Credit Party approving or consenting to such increaseCommitment Increase; and
(D) a certificate of a Financial Officer of Platinum Holdings, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth Credit Parties contained in this Agreement shall be and the other Credit Documents are true and correct in all material respects, both immediately before and after giving effect to the Commitment Increase and any Borrowings or Letters of Credit issued in connection therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrowerdate), and (iiiz) (x) upon the reasonable request no Default or Event of any Bank made at least five (5) days prior to the effectiveness of any Accession AgreementDefault has occurred and is continuing, the Borrower shall have provided to such Bank, both immediately before and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseCommitment Increase (including any Borrowings or Letters of Credit issued in connection therewith and the application of the proceeds thereof); and
(ii) In the case of any Credit Extension in connection with such Commitment Increase, and their respective the conditions precedent set forth in Section 4.2 shall have been satisfied.
(e) To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Commitments, on the Commitment Increase Date, (i) all then outstanding LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, the applicable Borrowers shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans, will (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Lender’s Ratable Share (calculated after
(a) shall automatically be reamended to reflect the Commitments of all Lenders after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be subject to indemnification by the applicable Borrowers pursuant to the provisions of Section 2.17 if the Commitment Increase Date occurs other than on the last day of the Interest Period relating thereto.
(f) To the extent necessary to keep the outstanding Letters of Credit ratable in the event of any non-establishedratable increase in the Total Commitments, as soon as possible following the Commitment Increase Date, each Syndicated Letter of Credit shall be amended to reflect the new Ratable Shares of the applicable Lenders, it being understood for the avoidance of doubt that such amendment shall not be deemed a Credit Extension hereunder. Until a Syndicated Letter of Credit has been amended in accordance with this Section 2.19(f), each applicable Lender shall be deemed to have sold and transferred to each of the other Lenders, and each such other Lenders shall be deemed irrevocably and unconditionally to have purchased and received from such Lender, without recourse or warranty, an undivided interest and participation, to the effectiveness extent of such increase Lender’s revised Ratable Share, in such Syndicated Letter of Credit, each drawing made thereunder, the obligations of any Account Party under this Agreement with respect thereto and any security therefor or guaranty pertaining thereto. No Credit Party shall be conditioned on obligated to pay any fees or increase in fees as a result of any of the implementation actions taken pursuant to this Section 2.19(f) other than the customary fees ▇▇▇▇▇ Fargo requires in connection with the amendment of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryletters of credit.
Appears in 1 contract
Sources: Credit Agreement (Platinum Underwriters Holdings LTD)
Increase in Commitments. The Borrower may at (a) At any time and from time to timeafter the Effective Date until the third anniversary of the Effective Date, the Borrower may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Lenders), request at any time or from time to time that the total Revolving Advance Commitments and/or Term A Commitments and/or Term B Commitments be increased; provided that (i) the aggregate amount of all such increases pursuant to this Section shall not exceed $1,000,000,000, (ii) the Borrower shall offer each Lender the opportunity to increase its applicable Commitment by its Percentage of the proposed increased amount, and (iii) each Lender, in its sole discretion, may either (A) agree to increase its applicable Commitment by all or a portion of the offered amount or (B) decline to increase its applicable Commitment. Any such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective. In the event that the Lenders shall have agreed to increase their applicable Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing BankAugmenting Lender”), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) Commitments or increase its existing Commitment in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of an increase in the Revolving Advance Commitments, each LC Bank that has any outstanding Letters of Credit at the time (which approval approvals shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, withheld or delayed). Any such additional Term Advances shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (be deemed an “Accession AgreementIncremental Term Advance”). New Commitments and increases in Commitments , any such commitment to make Incremental Term Advances shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefroman “Incremental Term Advance Commitment”, and the Administrative Agent shall have received a certificate aggregate amount thereof agreed to that effect dated such date and executed be provided by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank applicable Lenders or Augmenting Lenders shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable an “know your customerIncremental Term Advance Commitment Amount”. Any such additional Revolving Advance Commitments shall be deemed an “Incremental Revolving Commitment” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior aggregate amount thereof agreed to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon provided by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase applicable Lenders or Augmenting Lenders shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary“Incremental Revolving Advance Commitment Amount.”
Appears in 1 contract
Sources: Credit Agreement (Supervalu Inc)
Increase in Commitments. (a) The Borrower Company may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banksapplicable Lenders) executed by a Responsible Officer of the Borrower Company and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankLender”), which may include any BankLender, cause new Global Tranche Commitments or US Tranche Commitments to be extended by the Increasing Lenders (or cause the existing Global Tranche Commitments or US Tranche Commitments of the Increasing Banks Lenders to be increased (or cause increased, as the Increasing Banks to extend new Commitmentscase may be) in an amount for each Increasing Bank Lender (which shall not be less than $10,000,000US$5,000,000) set forth in such notice, ; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all the new Commitments and increases in existing Commitments becoming effective under pursuant to this paragraph shall not be greater than US$1,000,000,000 in the aggregate during the term of this Agreement and shall not exceed $200,000,000 in the aggregatebe less than US$10,000,000 (or any portion of such US$1,000,000,000 aggregate amount remaining unused) for any such increase, (iiiii) each Increasing BankLender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent and each LC Issuer (which approval shall not be unreasonably withheld) and (iviii) each Increasing BankLender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower Company (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17paragraph. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Lender is a party, (i) such Increasing Bank Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank hereunderLender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Commitment or Commitments of such Increasing Lender as provided in such Accession Agreement. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii4.02(b) through and (vc), giving effect to such increase, increase and (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement Sections 4.01(b) and (c) shall be true and correct satisfied (with all references in all material respects and no Default shall have occurred and such paragraphs to a Credit Event being deemed to be continuing or would result therefrom, references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCompany.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Hartford Financial Services Group Inc/De)
Increase in Commitments. (a) The Borrower may shall have the right at any time and from time to time, by written notice time after the Closing Date and prior to the Administrative Agent date that is thirty (which shall promptly deliver a copy 30) days prior to the Banks) executed final Facility Termination Date to increase the Aggregate Commitment (each such proposed increase being a “Commitment Increase”), either by having a Responsible Officer of the Borrower and one or more financial institutions Lender increase its Commitment then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by adding as a Lender with a new Commitment hereunder a Person which is not then a Lender (each an “Assuming Lender”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to case with the approval of the Administrative Agent Agent, each LC Issuer and the Swingline Lender (which such approval shall not to be unreasonably withheld), which notice shall specify the name of each Increasing Lender and/or Assuming Lender, as applicable, the amount of the Commitment Increase and the portion thereof being assumed by each such Increasing Lender or Assuming Lender, and the date on which such increase is to be effective (the “Commitment Increase Date”), which shall be a Business Day at least three (3) Business Days after delivery of such notice; provided that no Lender shall have any obligation hereunder to become an Increasing Lender and any election to do so shall be in the sole discretion of each Lender; provided further that: (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or a higher integral multiple of $1,000,000; (ii) immediately after giving effect to any Commitment Increase, the Aggregate Commitment shall not exceed $450,000,000 and the aggregate amount of all Commitment 49 15484836v115484836v9 Increases shall not exceed $150,000,000; (iii) the sum of the increases in Commitments of the Increasing Lenders and the new Commitments of the Assuming Lenders shall not exceed the requested Commitment Increase; (iv) no Default or Unmatured Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase; and (v) the representations and warranties contained in Article 5 (other than in Section 5.5) shall be true on and as of the Commitment Increase Date as if made on and as of such date (or, if any such representation and warranty is expressly stated to have been made as of a specified date, as of such specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each Increasing BankLender and/or the new Commitment of each Assuming Lender, if not already a Bank hereunderas applicable, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments resulting therefrom) shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness as of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date; provided that: (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect on or prior to 10:00 a.m. on such Commitment Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions to such increase, Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the resolutions adopted by the Borrower approving or consenting to such Commitment Increase; (ii) on the effective date of such increasewith respect to each Assuming Lender, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerreceived, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days on or prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to 10:00 a.m. on such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requestsCommitment Increase Date, a Beneficial Ownership Certification in relation to such Loan Party. On Joinder Agreement among the effective date of any increase in the Commitments pursuant to this Section 2.17Assuming Lender, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent; and (iii) each Increasing Lender shall have delivered to the Administrative Agent, on or prior to 10:00 a.m. on such Commitment Increase Date, confirmation in writing satisfactory to the Administrative Agent as to ensure that its increased Commitment, with a copy of such confirmation to the proportion between Borrower.
(c) On each Commitment Increase Date upon such time as the Banks’ applicable conditions set forth in Sections 2.20(a) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the then outstanding AdvancesAdvances (if any) in full prior to giving effect to such Commitment Increase, (ii) if the Borrower shall so request, request new Advances from the Lenders (including any Assuming Lender) in an aggregate amount at least equal to such prepayment, so that, after giving effect thereto, the Advances are held ratably by the Lenders in accordance with their respective Commitments (after giving effect to such increase, Commitment Increase) and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 (iii) pay to the contraryLenders any funding indemnification amounts required by Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Increase in Commitments. The Borrower may (a) Provided that no Default or Event of Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.10 and with the approval of Administrative Agent, Borrowers shall have the option, at any time and from time to time, before the Maturity Date to request the increase of the Total Real Estate Revolving Loan Commitment or the increase of the Total A/R Revolving Loan Commitment (each, a “Commitment Increase”), in an aggregate amount not to exceed $140,000,000.00 (such that the Total Commitment shall not exceed $500,000,000.00), by giving written notice to Administrative Agent (each, an “Increase Notice”), each of which shall specify the date (each, an “Increase Effective Date”) on which Borrowers propose that the applicable Commitment Increase shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent, and the Commitment to be increased; provided that any such individual increase of the Real Estate Revolving Loan Commitment or the A/R Revolving Loan Commitment must be in a minimum amount of $5,000,000.00 and increments of $5,000,000.00 in excess thereof unless otherwise approved by Administrative Agent in its sole discretion. Upon receipt of any Increase Notice, Administrative Agent shall consult with KeyBanc and shall notify Parent of the amount of the facility fees to be paid to any Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide a portion of the Commitment Increase pursuant to such Increase Notice in connection with such increase in the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be (which shall be in addition to the fees to be paid to Administrative Agent and KeyBanc pursuant to the Administrative Agent Fee Letter). If Borrowers agree to pay the facility fees so determined, Administrative Agent shall send a notice to all Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be (each, a “Commitment Increase Request Notice”), informing them of Borrowers’ request to increase the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, and of the facility fees to be paid with respect thereto. Each Real Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, who desires to provide a portion of the Commitment Increase upon such terms shall provide Administrative Agent with a written commitment letter specifying the portion of the Commitment Increase which it is willing to provide prior to such deadline as may be specified in the Commitment Increase Request Notice. If the requested increase is oversubscribed, Administrative Agent and KeyBanc shall allocate the Commitment Increase among the Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, who provide such commitment letters on such basis as Administrative Agent and KeyBanc shall determine in their sole discretion. If the increases to the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, so provided are not sufficient to provide the full amount of the Commitment Increase requested by Borrowers, then Administrative Agent, KeyBanc or Borrowers may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall promptly deliver be acceptable to Administrative Agent, KeyBanc and Parent) to become a copy Real Estate Revolving Loan Lender or an A/R Revolving Loan Lenders, as the case may be, and provide a portion of the Commitment Increase. Administrative Agent shall provide all Lenders with a notice setting forth the amount, if any, of the Commitment Increase to be provided by each Real Estate Revolving Loan Lender or A/R Revolving Loan Lender, as the case may be, and the revised Real Estate Revolving Loan Commitment Percentages or A/R Revolving Loan Commitment Percentages, as the case may be, which shall be applicable after the Increase Effective Date. In no event shall any Lender be obligated to increase its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be.
(b) The terms and provisions of the Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to the BanksCommitment Increases shall be as follows:
(i) terms and provisions of Loans made pursuant to the Commitment Increases shall be identical to the existing Real Estate Revolving Loans or A/R Revolving Loans, as the case may be (except as otherwise set forth in Section 2.10(a) with respect to the facility fees paid in connection therewith), it being understood that the Loans made pursuant to the Commitment Increases will be, for all intents and purposes, Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, and all references in the Loan Documents to Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to the Commitment Increases that are Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, made pursuant to this Agreement; and
(ii) the maturity date of Real Estate Revolving Loans or A/R Revolving Loans, as the case may be, shall be the Maturity Date.
(c) Upon each Increase Effective Date of each increase in the Total Real Estate Revolving Loan Commitment or Total A/R Revolving Loan Commitment, as the case may be, pursuant to this Section 2.10, (i) the applicable Commitment Increase shall be effected by a joinder agreement (the “Increase Joinder”) executed by Borrowers, Guarantors, Administrative Agent and each Lender making a Responsible Officer portion of such Commitment Increase, in form and substance reasonably satisfactory to each of them, and the Borrower Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and one the other Loan Documents as may be necessary or more financial institutions (any such financial institution referred appropriate, in the opinion of Administrative Agent, to in effect the provisions of this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph2.10, (ii) all new Commitments Administrative Agent may unilaterally revise Schedule 1.1(a) to reflect the name and increases in existing Commitments becoming effective under this paragraph during address, Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the term case may be, and Real Estate Revolving Loan Commitment Percentage or A/R Revolving Loan Commitment Percentage, as the case may be, of this Agreement shall not exceed $200,000,000 in the aggregate, each Lender following such increase and (iii) Borrowers shall execute and deliver to Administrative Agent a new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, for each Increasing BankReal Estate Revolving Loan Lender or A/R Revolving Loan Lender, if as the case may be, whose Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be, has changed so that the principal amount of such Real Estate Revolving Loan Lender’s or A/R Revolving Loan Lender’s, as the case may be, Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall equal its Real Estate Revolving Loan Commitment or A/R Revolving Loan Commitment, as the case may be. Administrative Agent shall deliver such replacement Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, to the respective Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be, in exchange for the Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, replaced thereby which shall be surrendered by such Real Estate Revolving Loan Lenders or A/R Revolving Loan Lenders, as the case may be. Each such new Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall provide that it is a replacement for the applicable surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, and that it does not already constitute a Bank hereundernovation, shall be subject to the approval dated as of the Administrative Agent (which approval applicable Increase Effective Date and shall not otherwise be unreasonably withheld) and (iv) each Increasing Bankin substantially the form of the replaced Real Estate Revolving Loan Note or A/R Revolving Loan Note, if not already a Bank hereunderas the case may be. Concurrently with the issuance of any new Real Estate Revolving Loan Note or A/R Revolving Loan Note, shall become a party to this Agreement by completing and delivering to as the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered case may be, pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v2.10(c), giving effect Borrowers shall deliver an opinion of counsel, addressed to such increasethe Lenders and Administrative Agent, (ii) on relating to the effective date due authorization, execution and delivery of such increasenew Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromcase may be, and the Administrative Agent enforceability thereof, in form and substance substantially similar to the opinion delivered in connection with the first disbursement under this Agreement. The surrendered Real Estate Revolving Loan Note or A/R Revolving Loan Note, as the case may be, shall have received a certificate be canceled and returned to that effect dated such date and executed by a Financial Officer of Borrowers.
(d) Notwithstanding anything to the Borrowercontrary contained herein, and (iii) (x) upon Borrowers may not request any Commitment Increase unless the reasonable request of any Bank made at least five (5) days following conditions precedent are satisfied prior to the effectiveness of any Accession Agreementthereof, which conditions cannot be waived without the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, consent of all of the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Lenders:
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Increase in Commitments. The (a) No more than two times after the Closing Date but prior to the Termination Date, the Borrower may shall have the right, at any time and from time to time, by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $50,000,000 and (z) the aggregate of all Commitment Increases effected after the Closing Date shall not exceed $20,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by the Borrower unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) and (iv) the Borrower and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Lender Joinder Agreement by completing and delivering to together with all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrower may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment of such Additional Lender and its status as a Lender hereunder.
(c) If the aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (an the “Accession Agreement”). New Commitments and increases in Commitments Commitment Increase Date,” which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Termination 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 Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.20 to all obligations of a Bank hereunder. Notwithstanding the foregoingcontrary, no increase in the Total aggregate Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.20 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed Lender Joinder Agreement together with those delivered all other documentation required by the Administrative Agent and the Borrower pursuant to Section 2.20(b);
(B) an instrument, duly executed by the Borrower, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement and the other Credit Documents to which it is a party;
(C) through a certificate of the secretary or an assistant secretary of the Borrower, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of the Borrower approving or consenting to such increaseCommitment Increase;
(D) a certificate of an Authorized Officer of the Borrower, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Credit Documents are true and correct in all material respects respects, both immediately before and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that after giving effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of Commitment Increase and any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested Loans issued in connection with applicable “know your customer” therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Actcorrect in all material respects, in each case at least three (3) Business Days prior to the effectiveness as of any Accession Agreement such date), and (yz) at least three (3) Business Days prior to the effectiveness no Default or Event of any Accession AgreementDefault has occurred and is continuing, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower both immediately before and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseCommitment Increase (including any Loans issued in connection therewith and the application of the proceeds thereof); and
(ii) The conditions precedent set forth in Section 3.2 shall have been satisfied; provided, and their respective Commitmentshowever, that the Borrower shall not be required to deliver a Notice of Borrowing unless Borrower is requesting a Borrowing of Loans in connection with such Commitment Increase. Immediately after the effectiveness of the Commitment Increase, Schedule 1.1(a) shall automatically be amended to reflect the Commitments of all Lenders after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time and from time to time(a) Provided there exists no Default, by written upon notice to the Administrative Agent (which shall promptly deliver a copy notify the Lenders), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may from time to time, subsequent to the Banks) executed Amendment No. 4 Effective Date, request an increase in the Aggregate Commitments by an aggregate amount not exceeding $400 million either by having a Responsible Officer of the Borrower and one Lender increase its Commitment then in effect or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), by adding as a Lender with a new Commitment hereunder a Person which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall is not be less than $10,000,000) set forth in such notice, then a Lender; provided that (i) any such request for an increase shall be in a minimum amount of $10 million, except in the case of the final request, which may be for the entire remaining amount, (ii) ▇▇▇▇▇▇▇- Toledo International may make a maximum of five such requests, and (iii) such increase may take the form of incremental term loans instead of increasing revolving credit availability hereunder. At the time of sending any such notice in the case of any request for increases in the Commitment of any existing Lender, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no Bank event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall have any obligation notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the or extend incremental term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bankloans 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 already a Bank hereunder, responding within such time period shall be subject deemed to the approval have declined to increase its Commitment or extend incremental term loans hereunder. The Administrative Agent shall notify ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International and each Lender of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) Lenders’ responses to each Increasing Bank, if not already a Bank request made hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably . ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may also invite additional Eligible Assignees satisfactory to the Administrative Agent (acting reasonably) to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International, the Borrower (an “Accession Agreement”)Administrative Agent and their respective counsel. New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered Any new Lender becoming a party hereto pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, 2.15 shall (1) execute such Increasing Bank shall thereafter be deemed to be a party to this Agreement documents and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) agreements as the Administrative Agent shall have received documents consistent with those delivered may reasonably request and (2) in the case of any Lender that is organized under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date laws of such increase, the representations and warranties a jurisdiction outside of the Borrower and United States of America, provide to the Guarantors set forth in this Agreement Administrative Agent, its name, address, tax identification number and/or such other information as shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and necessary for the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection comply with applicable “know your customer” and anti-money-money laundering rules and regulations, including, including without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17Patriot Act and, to the extent there are outstanding Advancesreasonably requested by the Administrative Agent, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryBeneficial Ownership Regulation.
Appears in 1 contract
Sources: Credit Agreement (Mettler Toledo International Inc/)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eightythirty (18030) days prior to the Commitment Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000, or such lesser amount as the Administrative Agent may reasonably agree, (ii) immediately after giving effect to any Commitment Increase, the aggregate Revolver Commitments shall not exceed $800,000,0001,200,000,000, and (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V and (v) no. No consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under any letter agreement with the Administrative Agent or under any other letter agreement with a Lender acting as an arranger approved by the Administrative Agent, which shall be paid in accordance with their terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or any Lender, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval, not to the approval be unreasonably withheld, conditioned or delayed, of the Administrative Agent (which approval and the Issuing Bank). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.172.14. Upon 92 WBD (US) 42673629v7
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Commitment Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a)(i) through (iii) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the (i) The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) (A) a supplement to this Agreement signed by the Administrative Agent and each other Lender committing to the Commitment Increase and, all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on or items as the effective date of such increaseAdministrative Agent, the representations Additional Lender, Increasing Lender or their counsel may reasonably request; and
(B) an instrument, duly executed by the Borrower and warranties each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing resolutions adopted by the board of directors (or would result therefrom, and the Administrative Agent shall have received similar governing body) of such party approving or consenting to such Commitment Increase;
(D) a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Chief Financial Officer
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to time, time after the Closing Date but prior to the date 30 days prior to the Commitment Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called an each, and “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $350,000,000 and (z) the aggregate of all Commitment Increases effected after the Closing Date shall not exceed $100,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by the Borrower unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval Agent, the Swingline Lender and the Issuing Lender shall not be unreasonably withheldwithheld or delayed) and (iv) the Borrower and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Lender Joinder Agreement by completing and delivering to together with all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrower may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment of such Additional Lender and its status as a Lender hereunder.
(c) If the aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (an the “Accession Agreement”). New Commitments and increases in Commitments Commitment Increase Date,” which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than 30 days prior to the Commitment Termination 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 Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. effect such Commitment Increase.
(d) Notwithstanding the foregoinganything set forth in this Section 2.21, no increase in the Total aggregate Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.21 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed Lender Joinder agreement together with those delivered all other documentation required by the Administrative Agent and the Borrower pursuant to Section 2.21(b);
(B) an instrument, duly executed by the Borrower, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement and the other Credit Documents;
(C) through a certificate of the secretary or an assistant secretary of the Borrower, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of the Borrower approving or consenting to such increaseCommitment Increase;
(D) a certificate of an Authorized Officer of the Borrower, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Credit Documents are true and correct in all material respects respects, both immediately before and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that after giving effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness Commitment Increase and any Borrowings or Letters of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested Credit issued in connection with applicable “know your customer” therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Actcorrect in all material respects, in each case at least three (3) Business Days prior to the effectiveness as of any Accession Agreement such date), and (yz) at least three (3) Business Days prior to the effectiveness no Default or Event of any Accession AgreementDefault has occurred and is continuing, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower both immediately before and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, Commitment Increase (including any Borrowings or Letters of Credit issued in connection therewith and their respective the application of the proceeds thereof); and
(ii) The conditions precedent set forth in Section 3.2 shall have been satisfied.
(e) To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Commitments, on the Commitment Increase Date, (i) all then outstanding LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall, if it so requests, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.12, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans, will (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Lender’s Ratable Share (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitment (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1(a) shall automatically be amended to reflect the effectiveness Commitments of such increase all Lenders after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be conditioned subject to indemnification by the Borrower pursuant to the provisions of Section 2.19 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Unum Group)
Increase in Commitments. The Borrower may Borrowers may, at any time and prior to the expiration or termination of the Commitments, request an increase in Commitments from time to time, by written time upon not less than 45 days’ prior notice delivered to the Administrative Agent Agent, as long as (which shall promptly deliver a) each requested increase is in a copy minimum amount of $5,000,000.00 and is offered on terms identical to the Banks) executed existing Commitments (including, without limitation, with respect to pricing, fees and maturity), except that the Borrowers may pay a closing fee in connection with such increase, such fee to be specified by a Responsible Officer Borrowers, but in no event to exceed 50 basis points of the Borrower and one or more financial institutions increased Commitments, (any such financial institution referred to in b) total increases under this Section being called an “Increasing Bank”)after the date hereof do not exceed $50,000,000.00 in the aggregate for all such increases, which may include any Bank, cause the Commitments of the Increasing Banks to be increased and no more than four (or cause the Increasing Banks to extend new Commitments4) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph are made during the term of this Agreement and (c) no Default or Event of Default has occurred and is continued or would be caused by such increase or any substantially concurrent borrowing thereunder. Agent shall not exceed $200,000,000 promptly notify Lenders in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval writing of the Administrative requested increase and, within ten (10) Business Days thereafter, each Lender shall notify Agent (which approval if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and have declined an increase. No Lender shall be entitled obligated to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total provide any increased Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreementit so agrees; provided, the Borrower shall have provided first request such increase from each existing Lender in accordance with such Lender’s pro rata share of the existing Commitment (as of the date of such request) prior to such Bankapproaching any other Person, and each such Bank Lender may elect or decline, in its sole discretion, to provide such increase. If existing Lenders fail to commit to the full requested increase as contemplated above, Eligible Assignees may issue additional Commitments for any unallocated portion of the requested increase and shall become Lenders hereunder in accordance with the terms hereof. Total Commitments shall be increased by the requested amount (or such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably satisfied with, deems appropriate to evidence the documentation increase in and other information so requested allocations of Commitments in connection accordance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Partyterms above. On the effective date of any increase in an increase, the Revolver Usage and other exposures under the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increasereallocated among Lenders, and their respective settled by Agent as necessary, in accordance with Lenders’ adjusted shares of Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to time, time after the Effective Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the Total Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called an each, and “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, (y) the Total Commitments shall not exceed $300,000,000 and (z) the aggregate of all Commitment Increases effected after the Effective Date shall not exceed $100,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by the Borrower unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval and the Fronting Bank shall not be unreasonably withheldwithheld or delayed) and (iv) the Borrower and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Agreement by completing and delivering to joinder agreement together with all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrower may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment of such Additional Lender and its status as a Lender hereunder.
(c) If the Total Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (an the “Accession Agreement”). New Commitments and increases in Commitments Commitment Increase Date,” which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Commitment Termination 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 Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.19 to all obligations of a Bank hereunder. Notwithstanding the foregoingcontrary, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.19 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed joinder agreement together with those delivered all other documentation required by the Administrative Agent pursuant to Section 2.19(b);
(B) an instrument, duly executed by each Credit Party, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement, the Security Documents and the other Credit Documents to which it is a party and the validity and continued effect of the Liens granted in favor of the Administrative Agent thereunder;
(C) through a certificate of the secretary or an assistant secretary of each Credit Party, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of such Credit Party approving or consenting to such increaseCommitment Increase;
(D) a certificate of a Financial Officer of the Borrower, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth Credit Parties contained in this Agreement shall be and the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, both immediately before and after giving effect to the Commitment Increase and any Borrowings or Letters of Credit issued in connection therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information if not so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Actqualified), in each case at least three (3) Business Days prior to the effectiveness as of any Accession Agreement such date), and (yz) at least three (3) Business Days prior to the effectiveness no Default or Event of any Accession AgreementDefault has occurred and is continuing, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower both immediately before and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseCommitment Increase (including any Borrowings or Letters of Credit issued in connection therewith and the application of the proceeds thereof); and
(ii) Each outstanding Syndicated Letter of Credit shall have been amended giving effect to the Commitment Increase or, if required, returned by each respective beneficiary to the Administrative Agent and their respective cancelled and/or exchanged for a new or amended Syndicated Letter of Credit giving effect to the Commitment Increase; and
(iii) In the case of any Credit Extension in connection with such Commitment Increase, the conditions precedent set forth in Section 4.2 shall have been satisfied. To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the aggregate Tranche 1 Commitments, on the Commitment Increase Date, (i) all then outstanding LIBOR Loans (the “Initial Loans”) shall automatically be converted into Base Rate Loans, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Tranche 1 Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Tranche 1 Lender’s Tranche 1 Ratable Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseTranche 1 Lender’s Tranche 1 Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans, will (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Tranche 1 Lender the portion of such funds equal to the difference, if positive, between (y) such Tranche 1 Lender’s Tranche 1 Ratable Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Tranche 1 Lender’s Tranche 1 Ratable Share (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Tranche 1 Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Tranche 1 Commitment (calculated after giving effect to the Commitment Increase), (vi) each Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Tranche 1 Lenders entitled thereto, and (vii) Schedule 1.1(a) shall automatically be amended to reflect the effectiveness Tranche 1 Commitments of such increase all Tranche 1 Lenders after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be conditioned subject to indemnification by the Borrower pursuant to the provisions of Section 2.17 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to time, time after the Closing Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $160,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $50,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the financial covenants contained in Article VII, and (v) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if it provides written notice of its election to participate within ten (10) Business Days of the Agent’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to increase its become an Increasing Lender. Any fees paid by the Borrower for a Commitment pursuant Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAgent or Wachovia, (iii) each Increasing Bank, if not already a Bank hereunderas Arranger, shall be subject to the approval of the Administrative Agent (which approval for their own account and shall not be unreasonably withheld) and (iv) each Increasing Bankin an amount, if not already any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.20 shall be construed to obligate the Borrower to pay any fee for a Bank hereunderCommitment Increase to an Increasing Lender, an Additional Lender, the Agent or Wachovia, as Arranger.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall become include the prior consultation with the Agent). The Borrower and each Additional Lender shall execute a party joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to this Agreement by completing in Section 2.20(d)(i)(A), all in form and delivering to the Administrative Agent a duly executed accession agreement in a form substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.20(e).
(c) If the aggregate Commitments are increased in accordance with this Section 2.20, the Borrower (an in consultation with the Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Accession Agreement”Commitment Increase Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). New Commitments The Agent shall promptly notify the Lenders of such increase and increases the Commitment Increase Date.
(d) Notwithstanding anything set forth in Commitments this Section 2.20 to the contrary, the Borrower shall become effective not incur any Revolving Loans pursuant to any Commitment Increase (and no Commitment Increase shall be effective) unless the conditions set forth in Section 2.20(a) as well as the following conditions precedent are satisfied on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the Administrative The Agent shall have received documents consistent with those delivered under Section 3.01(a)(iithe following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Agent:
(A) through an amendment to this Agreement signed by each Lender, including without limitation Increasing Lenders (vif any) and Additional Lenders (if any), giving effect setting forth the reallocation of Commitments referred to in Section 2.20(e), together with all other documentation required by the Agent pursuant to Section 2.20(b);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of a Financial Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in Article VII, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Agent and the Lenders, together with such other documents, instruments and certificates as the Agent shall have reasonably requested;
(ii) In the case of any Borrowing of Revolving Loans in connection with such Commitment Increase for the purpose of funding a Permitted Acquisition, the applicable conditions set forth in this Agreement with respect to Permitted Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase shall be true and correct in all material respects and no Default shall have occurred and deemed to be continuing or would result therefromrepaid, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolving Loans (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Loans, (iv) after the Agent receives the funds specified in clause (iii) above, the Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Loans and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and the effectiveness of such increase (vii) Schedule 1.1 shall be conditioned amended to reflect the Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Increase in Commitments. The Borrower may at any time and may, from time to time, on any Business Day prior to the Termination Date, increase the aggregate amount of the Commitments by written notice delivering a commitment amount increase request substantially in the form attached hereto as Exhibit H or in such other form acceptable to the Administrative Agent at least five (which shall promptly deliver a copy 5) Business Days prior to the Banksdesired effective date of such increase (the “Commitment Amount Increase”) executed by a Responsible Officer of the Borrower and identifying one or more financial institutions additional Lenders (any such financial institution referred to in this Section being called an “Increasing Bank”or additional Commitments for existing Lender(s) or by a combination of existing Lenders and additional Lenders) and the amount of its Commitment (or additional amount of its Commitment(s)); provided, which may include any Bankhowever, cause that (i) the aggregate amount of the Commitments of the Increasing Banks to shall not be increased by an amount in excess of $70,000,000,100,000,000, (or cause the Increasing Banks to extend new Commitmentsii) any Commitment Amount Increase shall be in an amount for each Increasing Bank (which shall of not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, no Default or Event of Default shall have occurred and be subject to continuing at the approval time of the Administrative Agent (which approval shall not be unreasonably withheld) request or the effective date of the Commitment Amount Increase, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement Section 6 hereof shall be true and correct in all material respects where not already qualified by materiality or Material Adverse Effect, otherwise in all respects at the time of such request and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On on the effective date of such Commitment Amount Increase (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects where not already qualified by materiality or Material Adverse Effect, otherwise in all respects as of such date). The effective date of the Commitment Amount Increase shall be as set forth in the related commitment amount increase request. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Percentage of Loans. It shall be a condition to such effectiveness that (i) if any increase in Eurodollar Loans are outstanding on the date of such effectiveness, such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the Lenders pursuant to Section 1.11 hereof and (ii) the Borrower shall not have previously terminated any portion of the Commitments pursuant to this Section 2.171.12 hereof. The Borrower agrees to pay any reasonable and documented, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and out-of-pocket expenses of the Administrative Agent relating to ensure that the proportion any Commitment Amount Increase and arrangement fees related thereto as agreed upon in writing between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, Administrative Agent and the effectiveness of such increase shall be conditioned on the implementation of such arrangementsBorrower. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Commitment and no Lender’s Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment.
Appears in 1 contract
Sources: Credit Agreement (Monmouth Real Estate Investment Corp)
Increase in Commitments. The Borrower may (a) Provided that no Default or Event of Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.8, Borrowers shall have the option, at any time and from time to time, before the Maturity Date to request the increase of the Total Commitment (each, a “Commitment Increase”), in an aggregate amount not to exceed $100,000,000.00, by giving written notice to the Administrative Agent (each, an “Increase Notice”), each of which shall promptly deliver specify the date (each, an “Increase Effective Date”) on which Borrowers propose that the applicable Commitment Increase shall be effective, which shall be a copy date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent; provided that any such individual increase of the Total Commitment must be in a minimum amount of $5,000,000.00 and increments of $5,000,000.00 in excess thereof unless otherwise approved by Administrative Agent in its sole discretion. Upon receipt of any Increase Notice, Administrative Agent shall consult with the Co-Lead Arrangers and shall notify Parent of the amount of the facility fees to be paid to any Lenders who provide a portion of the Commitment Increase pursuant to such Increase Notice in connection with such increase in the Total Commitment (which shall be in addition to the Banks) executed by fees to be paid to Administrative Agent and KeyBanc pursuant to the Fee Letter). If Borrowers agree to pay the facility fees so determined, Administrative Agent shall send a Responsible Officer notice to all Lenders (each, a “Commitment Increase Request Notice”), informing them of Borrowers’ request to increase the Total Commitment and of the Borrower facility fees to be paid with respect thereto. Each Lender who desires to provide a portion of the Commitment Increase upon such terms shall provide Administrative Agent with a written commitment letter specifying the portion of the Commitment Increase which it is willing to provide prior to such deadline as may be specified in the Commitment Increase Request Notice. If the requested increase is oversubscribed, Administrative Agent and the Co-Lead Arrangers shall allocate the Commitment Increase among the Lenders who provide such commitment letters on such basis as Administrative Agent and the Co-Lead Arrangers shall determine in their sole discretion. If the increases to the Total Commitment so provided are not sufficient to provide the full amount of the Commitment Increase requested by Borrowers, then Administrative Agent, or Borrowers may, but shall not be obligated to, invite one or more financial banks or lending institutions (any such financial institution referred which banks or lending institutions shall be acceptable to in this Section being called an “Increasing Bank”)Administrative Agent, which may include any Bank, cause the Commitments Lead Arranger and Parent) to become a Lender and provide a portion of the Increasing Banks Commitment Increase. Administrative Agent shall provide all Lenders with a notice setting forth the amount, if any, of the Commitment Increase to be increased (or cause provided by each Lender and the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (revised Commitment Percentages which shall not be less than $10,000,000applicable after the Increase Effective Date. In no event shall any Lender be obligated to increase its Commitment.
(b) The terms and provisions of the Revolving Loans made pursuant to the Commitment Increases shall be as follows:
(i) the proceeds of such Revolving Loans shall be used solely to acquire one hundred percent (100%) of the fee interest of one or more of the Senior Care Properties described on Schedule 1.1(c) or other properties approved by Administrative Agent and Required Lenders;
(ii) terms and provisions of Loans made pursuant to the Commitment Increases shall be identical to the existing Revolving Loans (except as otherwise set forth in such noticeSection 2.8(a) with respect to the facility fees paid in connection therewith), provided it being understood that the Loans made pursuant to the Commitment Increases will be, for all intents and purposes, Revolving Loans, and all references in the Loan Documents shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to the Commitment Increases that are Revolving Loans made pursuant to this Agreement; and
(iiii) no Bank the maturity date of Revolving Loans shall have any obligation to be the Maturity Date.
(c) Upon each Increase Effective Date of each increase its in the Total Commitment pursuant to this paragraphSection 2.8, (i) the applicable Commitment Increase shall be effected by a joinder agreement (the “Increase Joinder”) executed by Borrowers, Administrative Agent and each Lender making a portion of such Commitment Increase, in form and substance reasonably satisfactory to each of them, and the Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.8, (ii) all new Commitments Administrative Agent may unilaterally revise Schedule 1.1(a) to reflect the name and increases in existing Commitments becoming effective under this paragraph during the term address, Commitment and Commitment Percentage of this Agreement shall not exceed $200,000,000 in the aggregate, each Lender following such increase and (iii) Borrowers shall execute and deliver to Administrative Agent a new Revolving Loan Note for each Increasing Bank, if Lender whose Commitment has changed so that the principal amount of such Lender’s Revolving Loan Note shall equal its Commitment. Administrative Agent shall deliver such replacement Revolving Loan Note to the respective Lenders in exchange for the Revolving Loan Note replaced thereby which shall be surrendered by such Lenders. Each such new Revolving Loan Note shall provide that it is a replacement for the applicable surrendered Revolving Loan Note and that it does not already constitute a Bank hereundernovation, shall be subject to the approval dated as of the Administrative Agent (which approval applicable Increase Effective Date and shall not otherwise be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to in substantially the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to of the Administrative Agent and replaced Revolving Loan Note. Concurrently with the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered issuance of any new Revolving Loan Note pursuant to this Section 2.172.8(c), Borrowers shall deliver an opinion of counsel, addressed to the Lenders and Administrative Agent, relating to the due authorization, execution and delivery of such new Revolving Loan Note and the enforceability thereof, in form and substance substantially similar to the opinion delivered in connection with the first disbursement under this Agreement. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and The surrendered Revolving Loan Note shall be entitled canceled and returned to all rightsBorrowers.
(d) Notwithstanding anything to the contrary contained herein, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding Borrowers may not request any Commitment Increase unless the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days following conditions precedent are satisfied prior to the effectiveness thereof, which conditions cannot be waived without the consent of any Accession Agreement, all of the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Lenders:
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right, without the consent of the Lenders, the Global Administrative Agent or the Canadian Administrative Agent, to cause from time to time, time an increase in the total amount of the Commitments (a “Commitment Increase”) by written notice adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Global Administrative Agent and the Canadian Administrative Agent (which shall promptly deliver each a copy to the Banks“CI Lender”) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions (any such financial institution referred existing Lenders to in this Section being called an “Increasing Bank”)increase their respective Commitments; provided, which may include any Bankhowever, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregateU.S.$300,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Lender’s Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s prior written consent (which approval shall not consent may be unreasonably withheldgiven or withheld in such L▇▇▇▇▇’s sole and absolute discretion) and (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Global Administrative Agent and the Guarantors Canadian Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.21 attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Global Administrative Agent and the Canadian Administrative Agent) or on another date agreed to by the Global Administrative Agent, the Canadian Administrative Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire THE COMBINED LENDERS UNDER THE APACHE CORPORATION GLOBAL CREDIT FACILITY April 5, 2007 Page 10 transfer of immediately available funds, deliver to the Canadian Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromon such Commitment Increase Effective Date, and (ii) the Canadian Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall have received constitute a certificate prepayment by the Borrower pursuant to that effect dated such date and executed by a Financial Officer Section 2.10, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements aggregate principal amount of Loans as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, a result of borrowings made after giving effect to the Commitment Increase on such increase, Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the Commitment Increase that does not increase its respective Commitment as a result of the Commitment Increase and their respective Commitments, whose relative percentage of the total amount of the Commitments shall be reduced as a result of such Commitment Increase; and (3) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase).
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. The Borrower may at any time and may, from time to time, on any Business Day prior to the Termination Date, increase the aggregate amount of the Commitments by written notice delivering a commitment amount increase request substantially in the form attached hereto as Exhibit H or in such other form acceptable to the Administrative Agent at least five (which shall promptly deliver a copy 5) Business Days prior to the Banksdesired effective date of such increase (the “Commitment Amount Increase”) executed by a Responsible Officer of the Borrower and identifying one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased additional Lenders (or cause additional Commitments for existing Lender(s) or by a combination of existing Lenders and additional Lenders) and the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank of its Commitment (which shall not be less than $10,000,000) set forth in such noticeor additional amount of its Commitment(s)); provided, provided however, that (i) no Bank the aggregate amount of the Commitments shall have any obligation not be incurred to increase its Commitment pursuant to this paragraphan amount in excess of $50,000,000, (ii) all new Commitments and increases any Commitment Amount Increase shall be in existing Commitments becoming effective under this paragraph during the term of this Agreement shall an amount not exceed less than $200,000,000 in the aggregate5,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Event of Default shall have occurred and be subject to continuing at the approval time of the Administrative Agent (which approval shall not be unreasonably withheld) request or the effective date of the Commitment Amount Increase, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement Section 6 hereof shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom(where not already qualified by materiality, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested otherwise in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (yall respects) at least three (3) Business Days prior to the effectiveness time of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On request and on the effective date of such Commitment Amount Increase (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date). The effective date of the Commitment Amount Increase shall be as set forth in the related commitment amount increase request. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Percentage of Loans. It shall be a condition to such effectiveness that (i) if any increase in Eurodollar Loans are outstanding on the date of such effectiveness, such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the Lenders pursuant to Section 1.10 hereof and (ii) the Borrower shall not have terminated any portion of the Commitments pursuant to this Section 2.171.11 hereof. The Borrower agrees to pay any reasonable and documented, out-of-pocket expenses of the Administrative Agent relating to any Commitment Amount Increase and, solely to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by in writing between Administrative Agent and the Borrower and the Administrative Agent (it being acknowledged that Borrower shall have no obligation to ensure that the proportion between the Banks’ outstanding Advancesenter into any such agreement), after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangementsany arrangement fees related thereto. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Commitment and no Lender’s Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment.
Appears in 1 contract
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right to cause from time to time, time an increase in the Commitments of the Lenders by written notice up to $500,000,000 in the aggregate (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are consented to by the Global Administrative Agent (which consent shall promptly deliver a copy to the Banksnot be unreasonably withheld or delayed) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called an each a “Increasing BankCI Lender”); provided, which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided however that (i) at the time of the Commitment Increase, no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregate2,200,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Lender’s Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s prior written consent (which approval shall not consent may be unreasonably withheld) given or withheld in such Lender’s sole and absolute discretion), (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans, and (v) each CI Lender shall execute a Notice of Commitment Increase and deliver such executed notice to the Guarantors Global Administrative Agent.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Global Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit K attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Global Administrative Agent) or on another date agreed to by the Global Administrative Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Global Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromon such Commitment Increase Effective Date, and (ii) the Global Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall have received constitute a certificate prepayment by the Borrower pursuant to that effect dated such date and executed by a Financial Officer Section 2.11, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” the reallocation of any outstanding Loans.
(d) Each Commitment Increase shall become effective on its Commitment Increase Effective Date and anti-money-laundering rules upon such effectiveness (i) the Global Administrative Agent shall record in its records the CI Lender’s information as provided in the Notice of Commitment Increase and regulations, including, without limitation, the PATRIOT Act, pursuant to an Administrative Questionnaire in each case at least three (3) Business Days prior form satisfactory to the effectiveness of any Accession Agreement Global Administrative Agent that shall be executed and (y) at least three (3) Business Days prior delivered by each CI Lender to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Global Administrative Agent on or before the Commitment Increase Effective Date, (ii) Schedule 2.1 hereof shall be amended and restated to ensure set forth all Lenders (including any CI Lenders) that the proportion between the Banks’ outstanding Advances, will be Lenders hereunder after giving effect to such increaseCommitment Increase (which shall be set forth in Annex I to the applicable Notice of Commitment Increase) and the Global Administrative Agent shall distribute to each Lender (including each CI Lender) a copy of such amended and restated Schedule 2.1, and their respective Commitments, after giving effect to (iii) each CI Lender identified on the Notice of Commitment Increase for such increase, will be re-established, and the effectiveness of such increase Commitment Increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrarya “Lender” for all purposes under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. The Borrower may at (a) At any time and from time to timeafter the Closing Date, the Borrower may, by written notice to the Administrative Agent, request that the Total Commitment be increased by an amount not to exceed $50,000,000 in the aggregate for all such increases from the Closing Date until the Maturity Date, provided that no Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase. The Administrative Agent (which shall promptly deliver a copy of such request to the Banks) executed by a Responsible Officer of the each Lender. The Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticerequest the amount of the requested increase in the Total Commitment (which shall be in minimum increments of $10,000,000 and a minimum amount of $10,000,000) and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and that, provided that (i) no Bank shall have in any obligation event, must be at least 60 days prior to the Maturity Date). The Borrower may offer to each Lender the opportunity to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval by its Percentage of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and proposed increased amount and/or the Borrower may arrange for one or more banks or other entities that are Eligible Assignees (each such Person so agreeing being an “Accession AgreementAugmenting Lender”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant Each Lender shall, by notice to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each such Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any such Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment and each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). Each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender with a Commitment hereunder. Any increase in the Total Commitment may be made in an amount that is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to any increase in the Total Commitment pursuant to this Section 3.2(b), the outstanding Loans (if any) are held by the Lenders with Commitments in accordance with their new Percentages. This may be accomplished at the discretion of the Administrative Agent: (w) by requiring the outstanding Loans to be prepaid with the proceeds of new Borrowings; (x) by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the Borrowings outstanding at the time of any increase in the Total Commitment pursuant to this Section 3.2(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such increase, and Borrowings other than in accordance with their respective Commitments, after giving effect to such increase, will be re-established, and new Percentages; or (z) by any combination of the effectiveness of such increase foregoing. Any prepayment or assignment described in this paragraph (ii) shall be conditioned on subject to Section 2.7 hereof but otherwise without premium or penalty. In addition, in connection with any increase in the implementation of such arrangements. This Total Commitment pursuant to this Section 2.17 shall supersede the Administrative Agent may, in consultation with the Borrower, appoint any provisions in Section 2.13 Lender as a Syndication Agent, Documentation Agent, Co-Agent or 10.01 to the contraryother similar title.
Appears in 1 contract
Sources: Credit Agreement (DPL Inc)
Increase in Commitments. The (a) Prior to the Revolving Termination Date, Borrower may at any time and from time to timemay, by written notice to the Administrative Agent (which shall promptly deliver a copy of each to the BanksLenders), request that the Commitment be increased by an amount not less than $10,000,000 for any such increase; provided (i) executed by a Responsible Officer that such request for increase may be given only once during the term hereof and (ii) that after giving effect to any such increase the sum of the Borrower Commitment and the commitments under the Multi- Year Revolving Agreement shall not exceed $200,000,000 minus any amount by which the Commitment and the commitments under the Multi-Year Revolving Agreement shall have been reduced pursuant to SECTION 2.2 and SECTION 2.3 of the Multi-Year Revolving Agreement. Such notice shall set forth the amount of the requested increase in the Commitment and the date on which such increase is requested to become effective (which shall be not less than 45 days or more than 60 days after the date of such notice), and at Borrower's option, may offer to one or more existing Lenders and/or other banks or financial institutions (any such Lender or other bank or other financial institution referred to in this Section clause (a) being called an “Increasing Bank”), which may include any Bank, cause "AUGMENTING LENDER") the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks opportunity to extend new Commitments) credit hereunder or increase their existing Committed Sums in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the proposed increase; provided that (i) no Bank Lender shall have any obligation be obligated to agree to increase its Commitment pursuant to this paragraph, (ii) all new Commitments Committed Sum; and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) provided further that each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment Percentage and status as a Lender hereunder. Any increase in the Commitment may be made in an amount which is less than the increase requested by Borrower if Borrower is unable to arrange for Augmenting Lenders with sufficient Committed Sums.
(ivb) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the Commitment pursuant to this SECTION 2.3 (the "COMMITMENT INCREASE"), (i) the aggregate principal amount of the Borrowings outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Bank, if not already Augmenting Lender that shall have been a Bank hereunder, Lender prior to the Commitment Increase shall become a party to this Agreement by completing and delivering pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's Commitment Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a duly executed accession agreement Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender whose Committed Sum is not being increased (a "NON-INCREASING LENDER") the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender's Commitment Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing NBPLP CREDIT AGREEMENT Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a form reasonably satisfactory Borrowing Request delivered to the Administrative Agent in accordance with SECTION 2.4, (vi) each Non-Increasing Lender and each Augmenting Lender shall be deemed to hold its Commitment Percentage of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the Borrower shall pay each Augmenting Lender that shall have been a Lender prior to the Commitment Increase and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (an “Accession Agreement”). New i) above in respect of each Eurodollar Loan shall be subject to indemnification by Borrower pursuant to the provisions of SECTION 4.5 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result.
(c) Increases and new Commitments and increases in Commitments created pursuant to this SECTION 2.3 shall become effective on the date specified in the applicable notices notice delivered by Borrower pursuant to this Section 2.17. Upon the effectiveness first sentence of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the Total total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph or addition of a new Lender shall become effective unless under this Section unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement SECTIONS 7.1 and 7.2 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerResponsible Officer, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under SECTIONS 7.1 and 7.2 as to ensure that the proportion between the Banks’ outstanding Advances, partnership power and authority of Borrower to borrow hereunder after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Northern Border Partners Lp)
Increase in Commitments. (a) The US-Borrower may at any time and from time to timemay, by written notice to the Administrative Agent (which shall promptly deliver a copy from time to the Banks) executed by a Responsible Officer of the Borrower and time, request Incremental Commitments from one or more financial institutions Incremental Lenders (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bankexisting Lender), cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall such that all such Incremental Commitments combined do not be less than exceed the Dollar Amount of $10,000,000) set forth in such notice, 15,000,000; provided that (i) no Bank shall have any obligation after giving effect to such increase its the Aggregate Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed the Dollar Amount of $200,000,000 in the aggregate, (iii) 40,000,000 and provided further that each Increasing Bank, if not already a Bank hereunder, Incremental Commitment and each Incremental Lender shall be subject to the approval of the Administrative Agent Agent. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which approval shall be in an amount of at least the Dollar Amount of $1,000,000), and (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be unreasonably withheldless than ten (10) Business Days after the date of such notice). For the avoidance of doubt, only the approval of the Administrative Agent with regard to, and (iv) each Increasing Bankno approval from the Lenders shall be required with regard to, if not already a Bank hereunderand no Lender shall have the right to object to, shall become a party to this Agreement any request by completing and delivering the US-Borrower to the Administrative Agent to arrange for the making of any Incremental Commitment.
(d) The Hong Kong Borrower is hereby added as a duly executed accession agreement in a form reasonably satisfactory Borrower under the Agreement and hereby agrees to be bound by all of the terms and conditions contained therein. The Hong Kong Borrower’s contact information is set forth beneath its signature page below.
(e) Annex A to the Administrative Agent Agreement is hereby deleted in its entirety and replaced with Annex A attached hereto and made a part hereof.
(f) A new Exhibit G-1, “Hong Kong Borrower Notice” is hereby added to the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified Agreement in the applicable notices delivered pursuant to this Section 2.17. Upon form attached hereto.
(g) Each Guarantor hereby agrees that the effectiveness definition of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and “Obligations” in each Guaranty shall be entitled modified and expanded to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, includinginclude, without limitation, the PATRIOT ActFunds Transfer Obligations and shall include the unconditional obligation to pay and perform the Funds Transfer Obligations in accordance with the terms of each Guaranty.
(h) ▇▇▇▇▇▇▇▇▇▇ Electronics, Ltd. hereby agrees that the definition of “Obligations” in each case at least three (3) Business Days prior to of the effectiveness of any Accession Security Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Stock Pledge Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have deliveredeach dated July 27, to 2007 and each Bank that so requests, a Beneficial Ownership Certification entered into in relation to such Loan Party. On the effective date favor of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall be modified and expanded to ensure include, without limitation, the Funds Transfer Obligations and shall secure the Funds Transfer Obligations in accordance with the terms of each such instrument.
(i) ▇▇▇▇▇▇▇▇▇▇ International, Inc. hereby agrees that the proportion between definition of “Obligations” in the Banks’ outstanding AdvancesStock Pledge Agreement dated July 27, after giving effect 2007 and entered into in favor of the Administrative Agent shall be modified and expanded to such increaseinclude, without limitation, the Funds Transfer Obligations and their respective Commitments, after giving effect to such increase, will be re-established, and shall secure the effectiveness Funds Transfer Obligations in accordance with the terms of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryinstrument.
Appears in 1 contract
Sources: Revolving Credit Agreement (Richardson Electronics LTD/De)
Increase in Commitments. (a) The Borrower may Company may, at any time and from time prior to timethe Maturity Date, with the consent of the Administrative Agent (not to be unreasonably withheld), request that the aggregate amount of the Commitments be increased by written an amount equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof (each a “Commitment Increase”) to be effective as of a date that is at least 90 days prior to the scheduled Maturity Date then in effect (the “Increase Date”) as specified in the related notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”)Agent; provided, which may include any Bankhowever, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) in no Bank event shall have any obligation to increase its the aggregate amount of the Commitment pursuant to this paragraph, Increases exceed $75,000,000 and (ii) all new Commitments on the date of any request by the Company for a Commitment Increase and increases on the related Increase Date, the applicable conditions set forth in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, Article V shall be satisfied.
(b) The Administrative Agent shall promptly notify the Lenders and any Eligible Assignee as it shall identify (subject to the approval of the Administrative Agent (Agent, the L/C Issuer and the Swing Line Lender, which approval approvals shall not be unreasonably withheldwithheld or delayed) of a request by the Company for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iviii) the date by which Lenders wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective Commitments (the “Commitment Date”). The requested Commitment Increase shall be allocated among the Lenders and any Eligible Assignees willing to participate therein in such amounts as are agreed between the Company and the Administrative Agent. The Company shall prepay any Committed 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 Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.
(c) Promptly following each Increasing BankCommitment Date, the Administrative Agent shall notify the Company as to the amount, if not already any, by which any Lender or any Eligible Assignee is willing to participate in the requested Commitment Increase; provided, however, that the Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that was not, prior to such date, a Bank hereunderLender hereunder and accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.15(c) (each such Eligible Assignee, an “Assuming Lender”) shall become a Lender party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent as of such Increase Date and the Borrower Commitment of each Eligible Assignee that, prior to such date, was a Lender and accepts an offer to participate in such a requested Commitment Increase (an “Accession AgreementIncreasing Lender”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and ) shall be entitled to all rightsso increased by such amount as of such Increase Date; provided, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoinghowever, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) that the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(iion or before such Increase Date the following, each dated such date:
(i) through (A) certified copies of resolutions of the board of directors of each Borrower and each Subsidiary Guarantor approving the Commitment Increase and the corresponding modifications to this Agreement and (B) an opinion of counsel for each Borrower and each Subsidiary Guarantor (which may be in-house counsel), in form and substance satisfactory to, and covering such matters as may be reasonably requested by, the Administrative Agent;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Company and the Administrative Agent (each an “Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent and the Company;
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Company and the Administrative Agent;
(iv) Notes, if requested, payable to the order of the Assuming Lenders and the Increasing Lenders evidencing the aggregate indebtedness of each Borrower to such Lenders after giving effect to the applicable Commitment Increase;
(v)) a revised Schedule 2.01 hereto setting forth the Commitment of each Lender after giving effect to the applicable Commitment Increase; and
(vi) a certificate of each Loan Party dated as of the date of the Increase Date signed by a Responsible Officer of such Loan Party certifying that, before and after giving effect to such increase, (iiA) on the effective date of such increase, the representations and warranties of the Borrower Company and the Guarantors set forth each other Loan Party contained in this Agreement Article VI or any other Loan Document shall be true and correct in all material respects on and as of the Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in Sections 6.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 7.01(a) and (b), respectively, and (B) no Default shall have occurred and be continuing exists or would result therefromfrom such proposed Commitment Increase. On each Increase Date, and upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.15(d), the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of notify the Borrower, and Lenders (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, each Assuming Lender) and the PATRIOT ActCompany, on or before 1:00 P.M. (New York City time), by telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and shall record in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to Register the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, relevant information with respect to each Bank that so requests, a Beneficial Ownership Certification in relation to Increasing Lender and each Assuming Lender on such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrarydate.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Increase in Commitments. (a) The Borrower may at any time and from time to time, by 10 Business Days’ written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and request, on one or more financial institutions occasions, the establishment of one or more increased or new Commitments (any such financial institution referred to in this Section being called each, an “Increasing BankIncremental Commitment”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which . Each such notice shall not be less than $10,000,000) set forth in such notice, provided that specify (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraphthe date (each, (iian “Increase Effective Date”) all on which Borrower proposes that the increased or new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to effective, which shall be a date not less than 10 Business Days after the approval of the Administrative Agent (date on which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory such notice is delivered to the Administrative Agent and (ii) the identity of each Eligible Assignee to whom Borrower proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment.
(an “Accession Agreement”). New Commitments and increases in b) The increased or new Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness effective, as of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Effective Date; provided that:
(i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date no Default or Event of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromfrom the borrowings to be made on the Increase Effective Date;
(ii) on the Increase Effective Date, and after giving effect to the making of any Loans pursuant to the Incremental Commitments (each such Loan an, “Incremental Loan”), Borrower shall be in pro forma compliance with the covenant set forth in Section 7.12(a) as of the most recently completed Quarterly Testing Date;
(iii) the Administrative Agent shall have received an Incremental Amendment in form and substance reasonably satisfactory to the Administrative Agent and consistent with the provisions of this Section 2.12 (which, notwithstanding anything in Section 10.01 to the contrary, shall not require the consent of any Lender other than the Lenders providing the Incremental Commitments); and
(iv) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid.
(c) The terms and provisions of the Incremental Loans shall be as follows:
(i) the covenants, representations and warranties and events of default applicable to any Incremental Loans shall be substantially similar to those applicable to the then outstanding loans under this Agreement (except for covenants and other provisions applicable only to the periods after the latest Maturity Date then in effect); provided, that this clause (i) shall not apply to covenants, representations and warranties and events of default which are more favorable to the lenders providing the Incremental Loans than the Lenders if, simultaneously with the effectiveness of such Incremental Loans, this Agreement is amended in such a certificate manner as shall make the applicable provisions thereof similarly more favorable to that the Lenders;
(ii) the weighted average life to maturity of any Incremental Loans shall be no shorter than the weighted average life to maturity of the existing Loans; and
(iii) the maturity date of any Incremental Loans shall not be earlier than the latest Maturity Date then in effect, and after giving effect dated to the incurrence of such date Incremental Loans, no more than four Maturity Dates may be in effect hereunder. Notwithstanding Section 10.01 or anything in this Agreement or any other Loan Document to the contrary, the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and executed by a Financial Officer the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, and to effect the provisions of this Section 2.12.
(iiid) (x) upon the reasonable request of On any Bank made at least five (5) days prior Increase Effective Date on which Incremental Commitments for Incremental Loans are effective, subject to the effectiveness satisfaction of any Accession Agreementthe foregoing terms and conditions, the each Lender of such Incremental Commitment shall make an Incremental Loan to Borrower shall have provided in an amount equal to such Bank, its Incremental Commitment.
(e) The Loans and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments established pursuant to this Section 2.17shall constitute Loans and Commitments under, and shall be entitled to all the extent there are outstanding Advancesbenefits afforded by, this Agreement and the parties hereto shall implement such arrangements as may be agreed upon other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty and security interests created by the Borrower and Collateral Documents. The Restricted Persons shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the proportion between Lien and security interests granted by the Banks’ outstanding Advances, Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such increase, Loans and their respective Commitments, after giving effect Commitments substantially similar to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 those applicable to the contrarythen outstanding Loans.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Commitments shall not exceed $750,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 Business Days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company’s notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing BankAugmenting Lender”), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new US Tranche Commitments) , Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, or increase their existing US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) the Borrowers and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect reasonably specify to such increase, (ii) on evidence the effective date Commitment of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies Augmenting Lender and/or its status as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyLender hereunder. On the effective date of any Any increase in the total US Tranche Commitments, Swiss Tranche Commitments pursuant to this Section 2.17or Japanese Tranche Commitments, to as the extent there are outstanding Advancescase may be, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase requested by the Borrower and Company if the Administrative Agent Company is unable to ensure that the proportion between the Banks’ outstanding Advancesarrange for, after giving effect or chooses not to such increasearrange for, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAugmenting Lenders.
Appears in 1 contract
Sources: Five Year Credit Agreement (Edwards Lifesciences Corp)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to cause an increase in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased Lenders (or cause the Increasing Banks to extend new Commitmentsa “Commitment Increase”) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party by adding to this Agreement by completing one or more additional financial institutions that are not already Lenders hereunder and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably that are satisfactory to the Administrative Agent and the Borrower Issuing Lender (an each, a “Accession AgreementNew Lender”) or by allowing one or more existing Lenders to increase their respective Commitments; provided that (i) both before and immediately after giving effect to such Commitment Increase, no Default or Event of Default shall have occurred and be continuing as of the effective date of such Commitment Increase (such date, the “Commitment Increase Date”), (ii) no such Commitment Increase shall be in an amount less than $10,000,000, (iii) after giving effect to such Commitment Increase, the Total Commitments shall not exceed $500,000,000 and (iv) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion).
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Commitment Increase”) of its intention to increase the Commitments pursuant to this Section 2.19. Each such Notice of Commitment Increase shall specify (i) the proposed Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Commitment Increase, (ii) the amount of the requested Commitment Increase, (iii) as applicable, the identity of each New Lender and Lender that has agreed in writing to increase its Commitment hereunder, and (iv) the amount of the respective Commitments of the then existing Lenders and increases the New Lenders from and after the Commitment Increase Date.
(c) On any Commitment Increase Date, the Lenders shall purchase and assume (without recourse or warranty) from the Lenders (i) Loans, to the extent that there are any Loans then outstanding, and (ii) undivided participation interests in Commitments any outstanding LC Exposure, in each case, to the extent necessary to ensure that after giving effect to the Commitment Increase, each Lender has outstanding Loans and participation interests in outstanding LC Exposure equal to its Applicable Percentage of the Commitments. Each Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Commitment Increase Date. Each existing Lender (i) shall be automatically deemed to have assigned any outstanding Loans on the Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Commitment Increase Date, any Loans that are Eurodollar Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 2.15 in connection with the reallocation of such outstanding Loans to effectuate the provisions of this Section 2.19(c).
(d) Each Commitment Increase shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, its Commitment Increase Date and upon such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless effectiveness: (i) the Administrative Agent shall have received documents consistent with those record in the register each then New Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an Administrative Questionnaire that shall be executed and delivered under Section 3.01(a)(iiby each New Lender to the Administrative Agent on or before such Commitment Increase Date, (ii) through Schedule 1.1A shall be amended and restated to set forth all Lenders (v), including any New Lenders) that will be Lenders hereunder after giving effect to such increaseCommitment Increase (which amended and restated Schedule 1.1A shall be set forth in Annex I to the applicable Notice of Commitment Increase) and the Administrative Agent shall distribute to each Lender (including each New Lender) a copy of such amended and restated Schedule 1.1A, and (iii) each New Lender identified on the Notice of Commitment Increase for such Commitment Increase shall be a “Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Commitment Increase, the Borrower shall deliver to the Administrative Agent (i) a certificate of a Responsible Officer dated as of the Commitment Increase Date certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Commitment Increase and certifying that, before and after giving effect to such Commitment Increase, (iiA) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents made by it and the other Loan Parties are true and correct in all material respects on and as of the Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (B) no Default shall have occurred and be continuing or would result therefromEvent of Default exists or will exist as of the Commitment Increase Date, and (ii) any legal opinions, certificates and/or other documents reasonably requested by the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase.
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Increase in Commitments. (a) The US-Borrower may at any time and from time to timemay, by written notice to the Administrative Agent (which shall promptly deliver a copy from time to the Banks) executed by a Responsible Officer of the Borrower and time, request Incremental Commitments from one or more financial institutions Incremental Lenders (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bankexisting Lender), cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall such that all such Incremental Commitments combined do not be less than exceed the Dollar Amount of $10,000,000) set forth in such notice, 15,000,000; provided that (i) no Bank shall have any obligation after giving effect to such increase its the Aggregate Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed the Dollar Amount of $200,000,000 in the aggregate, (iii) 55,000,000 and provided further that each Increasing Bank, if not already a Bank hereunder, Incremental Commitment and each Incremental Lender shall be subject to the approval of the Administrative Agent Agent. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which approval shall be in an amount of at least the Dollar Amount of $1,000,000), and (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be unreasonably withheldless than ten (10) Business Days after the date of such notice). For the avoidance of doubt, only the approval of the Administrative Agent with regard to, and (iv) each Increasing Bankno approval from the Lenders shall be required with regard to, if not already a Bank hereunderand no Lender shall have the right to object to, shall become a party to this Agreement any request by completing and delivering the US-Borrower to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to arrange for the making of any Incremental Commitment.
(b) Each Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the amount of the Incremental Commitment and the Borrower (an “Accession Facility to which it applies. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement”). New Commitments and increases in Commitments shall become effective on Each of the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon parties hereto hereby agrees that, upon the effectiveness of any Accession Incremental Loan Assumption Agreement, this Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed amended to the extent (but only to the extent) necessary to reflect the existence and amount of the Incremental Commitment evidenced thereby. Any such deemed amendment may be a party memorialized in writing by the Administrative Agent without the consent of any Borrower, any Lender or the Administrative Agent. Once effectively added pursuant to this Agreement and Section, an Incremental Lender shall be entitled to deemed a Lender for all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations purposes of a Bank hereunder. the Agreement.
(c) Notwithstanding the foregoing, no increase in the Total Commitments (or in the Incremental Commitment of any Bank) pursuant to this paragraph shall become effective under this Section unless (i) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under Section 3.01(a)(ii4.1 and (ii) through (v), there would not exist any Default or Unmatured Default after giving effect to such increase, (ii) on Incremental Commitment and the effective date of such increase, Advances to be made thereunder and the representations and warranties application of the Borrower proceeds therefrom as if made and applied on such date.
(d) Each of the Guarantors set forth parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Lenders, when originally making their Incremental Commitment, are included in this Agreement shall be true and correct each outstanding Advance under its applicable Facility in all material respects and no Default shall have occurred and be continuing or would result therefromaccordance with its Percentage (after the requisite initial Advance by such Incremental Lender is made), and the Administrative Agent shall have received a certificate to Borrowers agree that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank they shall be reasonably satisfied with, the documentation and other information so requested responsible for any breakage or similar costs incurred in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness any conversion of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon an Advance required by the Borrower and the Administrative Agent to ensure effect the foregoing. For the avoidance of doubt, the parties acknowledge that any Incremental Lender shall be required, at the proportion between the Banks’ outstanding Advancestime of effectiveness of its Incremental Commitment, to fund an Advance thereunder in an amount such that, after giving effect to thereto, each Lender under the applicable Facility (including such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness Incremental Lender) has funded its Percentage of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryFacility.
Appears in 1 contract
Sources: Revolving Credit Agreement (Richardson Electronics LTD/De)
Increase in Commitments. The Borrower may at any time and from time to time, by written (a) Upon notice to the Administrative Agent (which shall promptly deliver a copy notify the applicable Lenders), the Company may from time to time request the Banks) executed by a Responsible Officer establishment of the Borrower and one or more financial institutions new revolving commitments (a “New Loan Commitment”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of $500,000,000; provided that any New Loan Commitment shall be in a minimum principal amount of $50,000,000 or a whole increment of $5,000,000 in excess thereof. The Company (in consultation with the Administrative Agent) shall specify in such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause notice (i) the Commitments principal amount of the Increasing Banks to requested New Loan Commitment and (ii) the date (the “Increase Effective Date”) on which the Company proposes that such New Loan Commitment shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank effective (which shall not in no event be less than $10,000,000) set forth in 15 Business Days from the date of delivery of such noticenotice to the Lenders). Each Lender shall notify the Administrative Agent within at least ten Business Days of the date of delivery of such notice to the Lenders whether or not it agrees to provide a portion of the requested New Loan Commitment (and, provided that (i) if so, the principal amount it proposes to provide). Notwithstanding anything herein to the contrary, no Bank Lender shall have any obligation to increase its provide any portion of the requested New Loan Commitment pursuant and any election to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement do so shall not exceed $200,000,000 be in the aggregate, sole discretion of such Lender. Any Lender not responding by 5:00 p.m. (iiiNew York City time) each Increasing Bank, if not already a Bank hereunder, on the date ten Business Days following delivery of such notice shall be deemed to have declined to provide any portion of the requested New Loan Commitment. The Administrative Agent shall notify the Company of the Lenders’ responses to the requested New Loan Commitment. To achieve the full amount of a requested New Loan Commitment and subject to the approval consent of the Administrative Agent (which approval and in the case of a New Loan Commitment for Committed Loans, each Issuing Lender and the Swing Line Lender) pursuant to Section 10.06, the Company may also invite additional Eligible Assignees to become Lenders. The Administrative Agent and the Company shall determine the final allocation of the requested New Loan Commitment; provided that the Company shall not be unreasonably withheldrequired to allocate any portion of such New Loan Commitment to existing Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the final allocation of the requested New Loan Commitment.
(b) Each New Loan Commitment shall become effective as of the related Increase Effective Date; provided that:
(i) no Event of Default shall exist on such Increase Effective Date before or after giving effect to such New Loan Commitment and to the making of any loans (in the case of new loans under the Facility, the “New Loans”) pursuant thereto;
(ii) the conditions of Section 4.02(a) shall be met as of such Increase Effective Date;
(iii) the Company shall be in pro forma compliance with the financial covenants set forth in Section 7.08 on the Increase Effective Date after giving effect to all Loans to be made on the Increase Effective Date and for the most recently ended fiscal quarter;
(iv) each Increasing Bankthe proceeds of all New Loans shall be used for purposes permitted under Section 6.08;
(v) the maturity date of a New Loan Commitment shall not be earlier than the Extended Revolving Credit Maturity Date;
(vi) such New Loan Commitment shall be effected pursuant to a Joinder Agreement substantially in the form of Exhibit G hereto executed by the Company, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent and the lenders providing the New Loans (the “New Lenders”);
(vii) the New Loans shall rank pari passu in right of payment with all other Loans and no New Loans shall be secured by or receive the benefit of any collateral, credit support or security that does not secure or support the existing Loans;
(viii) each New Loan Commitment shall be a duly executed accession agreement in Revolving Credit Commitment and part of the Facility (and not a form reasonably satisfactory separate facility or class hereunder), each New Lender thereunder shall be, and shall have all the rights of, a Revolving Credit Lender and the New Loans made by it shall be Committed Loans for all purposes of this Agreement and the terms and provisions of such New Loan Commitment and the related New Loans that are Committed Loans shall be identical to those of the existing Revolving Credit Commitments and existing Committed Loans;
(ix) all fees and expenses then due to the Administrative Agent and the Borrower Lenders (an “Accession Agreement”). other than any Defaulting Lender) with respect to the New Commitments Loan Commitment and increases in Commitments the New Loans shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments have been paid;
(or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (ix) the Administrative Agent shall have received such opinions, resolutions, certificates and other documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect and instruments related to such increase, New Loan Commitments as it shall reasonably request; and
(iixi) on the effective date of such increase, the representations other terms and warranties of the Borrower and the Guarantors set forth documentation in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request respect of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any New Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17Commitment, to the extent not consistent with this Agreement as in effect prior to the Increase Effective Date, shall otherwise be reasonably satisfactory to the Administrative Agent.
(c) On each Increase Effective Date, subject to the foregoing terms and conditions, each New Lender participating in the related New Loan Commitment shall become a Lender hereunder.
(d) In the case of New Loans, the Company shall prepay any Committed Loans outstanding on the applicable Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) and borrow Committed Loans from the New Lenders to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Revolving Credit Commitments under this Section and if there are outstanding AdvancesSwing Line Loans or Letters of Credit then outstanding, the parties hereto shall implement participations of the Revolving Credit Lenders in such arrangements as may Swing Line Loans or Letters of Credit will be agreed upon by automatically adjusted to reflect the Borrower and Applicable Percentages of all the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Revolving Credit Lenders after giving effect to such increasethe related New Loan Commitment.
(e) Notwithstanding anything herein to the contrary, and their respective Commitments, after giving effect to such increase, will be re-established, this Agreement and the effectiveness other Loan Documents may be amended or amended and restated to effect such changes as may be necessary or appropriate, in the opinion of such increase the Administrative Agent, to effect the provisions of this Section 2.14, which amendment (which may be incorporated in the applicable Joinder Agreement) shall be conditioned on executed by the implementation Company, the Administrative Agent and the New Lenders (but shall not be required to be executed by any other Lenders and, notwithstanding anything to the contrary set forth in Section 10.01, shall not require the consent of such arrangementsany Lender other than Lenders providing any New Loan Commitments established thereby). Such amendment may provide for the inclusion, as appropriate, of additional Lenders in any required vote or action of the Required Lenders, as appropriate. This Section 2.17 shall supersede any provisions in Section 2.13 2.12 or Section 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. The Borrower may Borrowers may, at any time and prior to the expiration or termination of the Commitments, request an increase in Commitments from time to time, by written time upon not less than 45 days’ prior notice delivered to the Administrative Agent Agent, as long as (which shall promptly deliver a) each requested increase is in a copy minimum amount of $10,000,000.00 and is offered on terms identical to the Banks) executed existing Commitments (including, without limitation, with respect to pricing, fees and maturity), except that the Borrowers may pay a closing fee in connection with such increase, such fee to be specified by a Responsible Officer Borrowers, but in no event to exceed 50 basis points of the Borrower and one or more financial institutions increased Commitments, (any such financial institution referred to in b) total increases under this Section being called an “Increasing Bank”)do not exceed $35,000,000.00 in the aggregate for all such increases, which may include any Bank, cause the Commitments of the Increasing Banks to be increased and no more than four (or cause the Increasing Banks to extend new Commitments4) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph are made during the term of this Agreement and (c) no Default or Event of Default has occurred and is continued or would be caused by such increase or any substantially concurrent borrowing thereunder. Agent shall not exceed $200,000,000 promptly notify Lenders in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval writing of the Administrative requested increase and, within ten (10) Business Days thereafter, each Lender shall notify Agent (which approval if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and have declined an increase. No Lender shall be entitled obligated to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total provide any increased Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreementit so agrees; provided, the Borrower shall have provided first request such increase from each existing Lender in accordance with such Lender’s pro rata share of the existing Commitment (as of the date of such request) prior to such Bankapproaching any other Person, and each such Bank Lender may elect or decline, in its sole discretion, to provide such increase. If existing Lenders fail to commit to the full requested increase as contemplated above, Eligible Assignees may issue additional Commitments for any unallocated portion of the requested increase and shall become Lenders hereunder in accordance with the terms hereof. Total Commitments shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably satisfied with, deems appropriate to evidence the documentation increase in and other information so requested allocations of Commitments in connection accordance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Partyterms above. On the effective date of any increase in an increase, the Revolver Usage and other exposures under the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increasereallocated among Lenders, and their respective settled by Agent as necessary, in accordance with Lenders’ adjusted shares of Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Increase in Commitments. The (i) Once per calendar year (or more frequently as permitted by Agent) Borrower may at any time and from time to timemay, by written notice to Agent, request that the Administrative Total Commitment Amount be increased by an amount not to exceed $125,000,000 in the aggregate for all such increases from the Closing Date until the last day of the Commitment Period, provided that (A) no Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase and (B) Borrower shall have delivered to Agent, together with such written notice, a copy of Borrower’s duly adopted corporate resolutions, in form and substance satisfactory to Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower as being true, correct, complete and in full force and effect. Upon receipt of any such request, Agent (which shall promptly deliver a copy of such request to the Banks) executed by a Responsible Officer of the each Lender. Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during request the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval amount of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no requested increase in the Total Commitments Commitment Amount (or which in each case shall be in a minimum amount of $25,000,000 and in such minimum increments in excess thereof as Agent shall permit) and the Commitment of any Bank) pursuant date on which such increase is requested to this paragraph shall become effective unless (i) which shall be not less than 10 Business Days nor more than 60 days after the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increaserequest and that, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall any event, must be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) 90 days prior to the effectiveness last day of the Commitment Period), and shall offer each Lender the opportunity to increase its Revolving Credit Commitment by its Commitment Percentage of the proposed increased amount. Each Lender shall, by notice to Borrower and Agent given not more than 10 days after the date of Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each such Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Accession Agreementsuch Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment and each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). If, on the 10th day after Agent shall have delivered notice as set forth above, the Borrower Increasing Lenders shall have provided agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Commitment Amount requested by Borrower, Borrower may arrange for one or more banks or other entities that are acceptable to Agent (each such BankPerson so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such Bank documentation as Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Lender with a Revolving Credit Commitment hereunder. Any increase in the Total Commitment Amount may be made in an amount that is less than the increase requested by Borrower if Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably satisfied withnecessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the documentation outstanding Revolving Loans (if any) are held by the Lenders with Revolving Credit Commitments in accordance with their new Commitment Percentages. This may be accomplished at the discretion of Agent: (w) by requiring the outstanding Loans to be prepaid with the proceeds of new Loans; (x) by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and Augmenting Lenders; (y) by permitting the Loans outstanding at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date time of any increase in the Commitments Total Commitment Amount pursuant to this Section 2.172.10(b) to remain outstanding until the last days of the respective Interest Periods therefor, to even though the extent there are outstanding Advances, Lenders would hold such Loans other than in accordance with their new Commitment Percentages; or (z) by any combination of the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryforegoing.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. The (a) If the Borrower may at shall have terminated all or a portion of the Tranche A Commitments and repaid all or a portion of the outstanding Tranche A Term Loans prior to or simultaneously with the consummation of any time and from time Commitment increase pursuant to timethis Section, the Borrower may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section clause (a) being called an “Increasing Bank”"Augmenting Lender"), which may include any BankLender, (i) at any time during the Tranche A Availability Period, cause the Tranche A Commitments of the Increasing Banks Augmenting Lenders to be increased (or cause Tranche A Commitments to be extended by the Increasing Banks Augmenting Lenders, as the case may be) and/or (ii) at any time prior to extend new Commitments) the Revolving Credit Maturity Date, cause the Revolving Credit Commitments of the Augmenting Lenders to be increased (or cause Revolving Credit Commitments to be extended by the Augmenting Lenders, as the case may be), in each case in an amount for each Increasing Bank (which shall not be less than $10,000,000) Augmenting Lender set forth in such noticenotice and not less than $5,000,000; provided, provided that (i) no Bank shall have any obligation to increase its Commitment the total amount by which the Commitments may be -------- increased pursuant to this paragraphSection shall be limited to the aggregate amount by which the Tranche A Commitments shall have been reduced and the Tranche A Term Loans repaid; provided further, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) that each Increasing BankAugmenting Lender, if not already a Bank -------- ------- Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a duly executed accession agreement in a form reasonably satisfactory Lender hereunder. Increases and new Commitments created pursuant to the Administrative Agent and the Borrower this clause (an “Accession Agreement”). New Commitments and increases in Commitments a) shall become effective on the date specified in the applicable notices notice delivered pursuant to this Section 2.17paragraph. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Each existing Lender whose Commitment is a party, such Increasing Bank shall thereafter be deemed to be a party not increased pursuant to this Agreement and shall be entitled Section is hereby referred to all rights, benefits and privileges accorded as a Bank hereunder and subject to all obligations of a Bank hereunder"Non-Increasing Lender". Notwithstanding the foregoing, no increase in the Total total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective unless under this paragraph unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement Section 4.01 shall be true and correct satisfied (with all references in all material respects and no Default shall have occurred and such paragraphs to a Credit Event being deemed to be continuing or would result therefrom, references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Closing Date under clauses (a) and (b) of Section 4.02 as to ensure that the proportion between corporate power and authority of the Banks’ outstanding Advances, Borrower to borrow hereunder after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $75,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $60,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, and (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Domestic Business Days before executing a commitment with any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Domestic Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under the Administrative Agent’s Letter Agreement, which shall be paid in accordance with its terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunderAdministrative Agent, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents are true and correct in all material respects (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default shall have or Event of Default has occurred and be continuing is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or would result therefromopinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have received a certificate reasonably requested; and
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to that effect dated such date and executed by a Financial Officer Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Borrower, and Revolver Advances (iiithe “Initial Advances”) (x) upon the reasonable request of any Bank made at least five (5) days immediately prior to giving effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolver Advances (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Advances and of the types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time and from time to time(a) Provided there exists no Default, by written upon notice to the Administrative Agent (which shall promptly deliver a copy to notify the Banks) executed by a Responsible Officer of applicable Lenders), the Borrower and may from time to time request the establishment of one or more financial institutions new term loan or revolving commitments (a “New Loan Commitment”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of $500,000,000; provided that any New Loan Commitment shall be in a minimum principal amount of $50,000,000 or a whole increment of $5,000,000 in excess thereof. The Borrower (in consultation with the Administrative Agent) shall specify in such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause notice (i) the Commitments principal amount of the Increasing Banks to requested New Loan Commitment, (ii) the date (the “Increase Effective Date”) on which the Borrower proposes that such New Loan Commitment shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank effective (which shall not in no event be less than $10,000,000fifteen Business Days from the date of delivery of such notice to the Lenders) set forth in and (iii) whether such noticeNew Loan Commitment is to be for Term Loans or Committed Loans. Each Lender shall notify the Administrative Agent at least five Business Days prior to the Increase Effective Date whether or not it agrees to provide a portion of the requested New Loan Commitment (and, provided that (i) if so, the principal amount it proposes to provide). Notwithstanding anything herein to the contrary, no Bank Lender shall have any obligation to increase its provide any portion of the requested New Loan Commitment pursuant and any election to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement do so shall not exceed $200,000,000 be in the aggregate, sole discretion of such Lender. Any Lender not responding by 5:00 p.m. (iiiNew York City time) each Increasing Bank, if not already a Bank hereunder, on the date five Business Days prior to the Increase Effective Date shall be deemed to have declined to provide any portion of the requested New Loan Commitment. The Administrative Agent shall notify the Borrower of the Lenders’ responses to the requested New Loan Commitment. To achieve the full amount of a requested New Loan Commitment and subject to the approval consent of the Administrative Agent (which approval shall not be unreasonably withheldand in the case of a New Loan Commitment for Committed Loans, each L/C Issuer and the Swing Line Lender) and (iv) each Increasing Bankpursuant to Section 10.06, if not already a Bank hereunder, shall the Borrower may also invite additional Eligible Assignees to become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Lenders. The Administrative Agent and the Borrower (an “Accession Agreement”)shall determine the final allocation of the requested New Loan Commitment; provided that the Borrower shall not be required to allocate any portion of such New Loan Commitment to existing Lenders. New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the The Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on promptly notify the effective date of such increase, the representations and warranties applicable Lenders of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer final allocation of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any New Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment.
Appears in 1 contract
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right, without the consent of the Lenders, the Administrative Agent, the Swingline Lenders or the Issuing Banks, to cause from time to timetime an increase in the total amount of the Commitments (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, the Swingline Lenders and the Issuing Banks (each a “CI Lender”) or by allowing one or more existing Lenders to increase their respective Commitments; provided, however, that (i) no Event of Default shall have occurred which is continuing, (ii) no such Commitment Increase shall cause the total amount of the Commitments to exceed $5,000,000,000 and (iii) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion).
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer “Notice of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankCommitment Increase”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for the form of Exhibit 2.9 hereto. The Administrative Agent shall give prompt notice to each Increasing Issuing Bank (which and each Swingline Lender of its receipt of a Notice of Commitment Increase. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall not be less than $10,000,000) effective on the proposed effective date set forth in such notice, provided that (i) no Bank shall have any obligation notice or on another date agreed to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an such date referred to as the “Accession AgreementCommitment Increase Effective Date”). .
(c) On each Commitment Increase Effective Date, to the extent that there are Revolving Loans outstanding as of such date, (i) each increasing Lender and each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such Lender’s New Commitments and increases in Commitments Funds Amount, which amount, for each such Lender, shall become effective on constitute Revolving Loans made by such Lender to the date specified in the applicable notices delivered Borrower pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyon such Commitment Increase Effective Date, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (iii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall have received documents consistent constitute a prepayment by the Borrower pursuant to Section 2.3, ratably in accordance with those delivered under Section 3.01(a)(ii) through (v)the respective principal amounts thereof, giving effect to such increase, (ii) on of the effective date principal amounts of all then outstanding Revolving Loans of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerReducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Revolving Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s incremental Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Revolving Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, aggregate principal amount of Revolving Loans as a result of borrowings made after giving effect to the extent there are outstanding Advances, Commitment Increase on such Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the parties hereto Commitment Increase that does not increase its Commitment as a result of the Commitment Increase and whose relative percentage of the total amount of the Commitments shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, reduced after giving effect to such increaseCommitment Increase; and (3) “Reduction Amount” means, and their respective Commitmentswith respect to each Reducing Percentage Lender, the amount equal to the product of a decrease in the relative percentage of the total amount of the Commitments represented by such Lender’s Commitment as a result of the Commitment Increase, times the aggregate principal amount of the outstanding Revolving Loans immediately prior to giving effect to the Commitment Increase, if any, as of a Commitment Increase Effective Date (without regard to any increase in the aggregate principal amount of Revolving Loans as a result of borrowings made after giving effect to the Commitment Increase on such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase Effective Date).
Appears in 1 contract
Sources: Third Amendment (Noble Energy Inc)
Increase in Commitments. The Borrower may at any time and from time to time, by written (a) Upon notice to the Administrative Agent (which shall promptly deliver a copy to notify the Banks) executed by a Responsible Officer of Lenders), the Borrower and one or more financial institutions (any such financial institution referred may from time to time, request an increase in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in Total Commitment by an amount (for each Increasing Bank (which shall all such requests) not be less than exceeding $10,000,000) set forth in such notice, 250,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $50,000,000, and (ii) the Borrower may make a maximum of three such requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no Bank event be less than ten Business Days from the date of delivery of such notice to the Lenders).
(b) Each Lender shall have any obligation notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bankand, if so, whether by an amount equal to, greater than, or less than its Commitment Percentage of such requested increase. Any Lender not already a Bank hereunder, responding within such time period shall be deemed to have declined to increase its Commitment.
(c) The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent and the Fronting Bank (which approval approvals shall not be unreasonably withheld) and (iv) each Increasing Bank), if not already the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession joinder agreement in a form reasonably and substance satisfactory to the Administrative Agent and the Borrower its counsel.
(an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no d) Any increase in the Total Commitments (or in Commitment shall be subject to the Commitment of any Bank) pursuant to this paragraph shall become effective unless following conditions precedent: (i) as of the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), proposed effective date of the increase in the Total Commitment and after giving effect to such increase, (ii) on the effective date of such increase, the all representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects as though made on such date (unless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date) and no Default event shall have occurred and then be continuing which constitutes a Default or would result therefromEvent of Default; (ii) the Borrower, and the Administrative Agent and each Eligible Assignee which shall have received agreed to provide a certificate “Commitment” in support of such increase in the Total Commitment, shall have executed and delivered a joinder agreement in a form reasonably acceptable to that effect dated such date and executed by a Financial Officer of the Borrower, and Administrative Agent; (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreementextent reasonably required by the Administrative Agent, counsel for the Borrower shall have provided to the Administrative Agent a supplemental opinion in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Lenders and any Eligible Assignee(s) shall otherwise have executed and delivered such Bank, other instruments and such Bank documents as the Administrative Agent shall be have reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” such increase; (v) the Borrower shall have executed and anti-money-laundering rules delivered all corporate authority documents that the Administrative Agent shall have reasonably requested in connection with such increase; and regulations, including, without limitation(vi) if applicable, the PATRIOT ActLC Administrator shall have delivered to the respective beneficiaries of outstanding Several Letters of Credit amendments (or, in each the case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to Several Letter of Credit issued individually by the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requestsLenders, a Beneficial Ownership Certification replacement Several Letter of Credit in relation exchange for and the return or cancellation of the original Several Letter of Credit) which reflect any changes in the Lenders and/or the Commitment Percentages resulting from such increase. Upon satisfaction of the conditions precedent to such Loan Party. On any increase in the Total Commitment, the Administrative Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. In addition, on the effective date, the Administrative Agent shall replace the existing Schedule 1.1 attached hereto with a revised Schedule 1.1 reflecting such new Total Commitment and each Lender’s Commitment. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder. It is understood that any increase in the amount of the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto §2.1.2 shall implement such arrangements as may be agreed upon by the Borrower not constitute an amendment of this Reimbursement and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryPledge Agreement.
Appears in 1 contract
Sources: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Increase in Commitments. The Borrower Company may at any time and from time to time, ----------------------- by written notice to the Administrative Agent Depositary Bank, propose that the aggregate of the Commitments be increased in excess of the aggregate of the Commitments then in effect (which shall promptly deliver a copy "Commitment Increase"), effective as of a date prior to the BanksRevolver Expiration Date (the "Increase Date") executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred as to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks agreement is to be increased reached by an earlier date specified in such notice (or cause the Increasing Banks to extend new Commitments"Commitment Date"); provided, however, that (A) the minimum proposed Commitment -------- ------- Increase per notice shall be in an amount for each Increasing Bank (which shall not be no less than $10,000,000) set forth in such notice5,000,000, provided that (iB) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments Event of Default has occurred and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) is continuing and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (iC) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth Company in this Agreement Article VII shall be true and correct in all material respects with the same ------- --- effect as if made on such Increase Date. The Depositary Bank shall notify the Banks thereof promptly upon its receipt of any such notice. If agreement is reached on or prior to the Commitment Date with one or more Banks and no Default Assuming Banks, if any, as to a Commitment Increase (which may be less than specified in the applicable notice from the Company), such agreement to be evidenced by a notice in reasonable detail from the Company to the Depositary Bank on or prior to the Commitment Date, the Assuming Banks, if any, shall have occurred and be continuing or would result therefrom, become Banks hereunder as of the Increase Date and the Administrative Agent Commitments of such Banks and such Assuming Banks shall become or be, as the case may be, as of the Increase Date the amounts specified in such notice (and the Depositary Bank shall give notice thereof to the Banks (including such Assuming Banks)); provided, however, that: -------- -------
(a) the Depositary Bank shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower(with copies for each Bank, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days including each Assuming Bank), on or prior to the effectiveness Increase Date, an opinion of any Accession Agreementcounsel for the Company in substantially the form of Exhibit D ------- - hereto and an opinion of counsel for each other Borrower substantially in the form of Exhibit F hereto, dated such Increase Date, together with a ------- - copy, certified on the Increase Date by the Secretary or an Assistant Secretary of the pertinent Borrower, of the resolutions adopted by the Board of Directors of the Company and each such other Borrower shall have provided to authorizing such Bank, and Commitment Increase;
(b) each such Assuming Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, on or prior to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17Increase Date, to the extent there are outstanding AdvancesDepositary Bank an appropriate Assumption Agreement; and
(c) each Bank which proposes to increase its Commitment in connection with such Commitment Increase shall have delivered, on or prior to the parties hereto Increase Date, confirmation in writing satisfactory to the Depositary Bank as to its increased Commitment. In the event that the Depositary Bank shall implement not have received notice from the Company as to such arrangements as may be agreed upon agreement on or prior to the Commitment Date or the Company shall, by notice to the Depositary Bank prior to the Increase Date, withdraw such proposal or any of the actions provided for above in clauses (a) through --- (c) of this Section 1.1.8. shall not have occurred by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding AdvancesIncrease Date, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.--- ------- ------ -5-
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $65,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, and (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Domestic Business Days before executing a commitment with any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Domestic Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under the Administrative Agent’s Letter Agreement, which shall be paid in accordance with its terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or BB&T, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) an opinion or opinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested; and
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Advances and correct of the types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Advances and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Revolver Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, the Borrowers shall have the right, without the consent of the Lenders but with the prior approval of the Administrative Agent and each Issuing Bank (not to be unreasonably withheld, delayed or conditioned), to cause from time to time, time an increase in the Aggregate Commitments (a “Commitment Increase”) by written notice adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Administrative Agent and each Issuing Bank (which shall promptly deliver a copy to the Bankseach, an “Additional Lender”) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called each, an “Increasing BankLender”); provided that (i) no Default or Event of Default shall have occurred and be continuing on the effective date of any Commitment Increase, which may include any Bank, cause the Commitments of the Increasing Banks to (ii) each Commitment Increase shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for that is not less than $25,000,000, (iii) no Commitment Increase shall cause the Aggregate Commitments to exceed $2,250,000,000, (iv) the Commitment of each Increasing Bank (which Additional Lender after giving effect to any proposed Commitment Increase shall not be less than $10,000,000, (v) set forth no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such noticeLender’s sole and absolute discretion), provided that and (ivi) no Bank if, on the effective date of any Commitment Increase, any Eurocurrency Loans have been funded, then the Borrowers shall have be obligated to pay any obligation breakage fees or costs or other amounts owing hereunder in connection with the breakage or reallocation of such outstanding Eurocurrency Loans in accordance with Section 2.13.
(b) Any Commitment Increase must be requested by written notice from the Borrowers to increase its the Administrative Agent (a “Notice of Commitment pursuant to this paragraph, (iiIncrease”) all new Commitments in substantially the form of Exhibit E attached hereto and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which and each Issuing Bank, such approval shall not to be unreasonably withheld, delayed or conditioned. Each such Notice of Commitment Increase shall specify (i) the proposed effective date of such Commitment Increase, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Commitment Increase, (ii) the amount of the requested Commitment Increase (which amount shall conform to the requirements of Section 2.15(a)), (iii) the identity of each Additional Lender and/or each Increasing Lender and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing the amount of the respective Commitments of the then existing Lenders and delivering to the Additional Lenders from and after the Commitment Increase Effective Date. The Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to and each Issuing Bank shall review each Notice of Commitment Increase and shall notify the Borrowers whether or not the Administrative Agent and each Issuing Bank approve the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyproposed Commitment Increase, such Increasing Bank shall thereafter be deemed approval not to be a party to this Agreement and shall be entitled to all rightsunreasonably withheld, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunderdelayed or conditioned. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) If the Administrative Agent and each Issuing Bank approve such Commitment Increase, the Borrowers, WIL-Switzerland, the Administrative Agent, each Issuing Bank and the applicable Additional Lenders and/or Increasing Lenders shall have received documents consistent execute a Commitment Increase Agreement to provide for such Commitment Increase. If any Issuing Bank does not approve such Commitment Increase, it shall provide the Borrowers and the Administrative Agent with those delivered under written notice of such decision (a “Commitment Increase Rejection Notice”) and shall identify in such notice (x) the Additional Lender or Additional Lenders that such Issuing Bank deems to be unsatisfactory and (y) the Increasing Lender or Increasing Lenders the increase in whose Commitment or Commitments such Issuing Bank deems to be unsatisfactory (the Additional Lenders and Increasing Lenders so identified being referred to herein as the “Identified Lenders”).
(c) Notwithstanding anything to the contrary contained herein, if any Issuing Bank does not approve any Commitment Increase requested by the Borrowers pursuant to Section 3.01(a)(ii) through (v2.15(b), giving effect the Borrowers may terminate the LC Commitment of such Issuing Bank pursuant to Section 3.01(i). If there are no Letters of Credit issued by such increase, (ii) Issuing Bank outstanding on the effective date of such increasetermination and such Issuing Bank has not otherwise agreed to, and does not otherwise have any obligation to, issue any additional Letters of Credit hereunder, such Issuing Bank shall be deemed to be a Terminated Issuing Bank as of such date of termination. If there are any Letters of Credit issued by such Issuing Bank outstanding on the effective date of such termination, such Issuing Bank shall be deemed to be a Terminated Issuing Bank only upon satisfaction of the following conditions:
(i) such Issuing Bank has not otherwise agreed to, and does not otherwise have any obligation to, issue any additional Letters of Credit hereunder; and
(ii) the Borrowers shall have either (A) deposited cash in an account with such Issuing Bank, in the name of and for the benefit of such Issuing Bank (which cash shall be held, invested and applied by such Issuing Bank in a manner consistent with the investment and other procedures described in Section 3.01(j)), or (B) provided such Issuing Bank with a “back-to-back” letter of credit in favor of such Issuing Bank, in each case in an aggregate amount (or face amount, as applicable) equal to the product of (I) the maximum aggregate amount that may be available for drawing at any time under all Letters of Credit issued by such Issuing Bank outstanding at such time multiplied by (II) a fraction, the numerator of which is the sum of the Identified Lender Exposures of all Identified Lenders identified by such Issuing Bank in its Commitment Increase Rejection Notice delivered in connection with such Commitment Increase, and the denominator of which is the Aggregate Commitments (after giving effect to such Commitment Increase). If any Issuing Bank is deemed to be a Terminated Issuing Bank on the proposed date of effectiveness of any Commitment Increase, it shall not be necessary to obtain the approval of such Terminated Issuing Bank for such Commitment Increase, and it shall not be a requirement that such Terminated Issuing Bank execute the Commitment Increase Agreement providing for such Commitment Increase.
(d) Each Commitment Increase shall become effective on the proposed effective date set forth in the Notice of Commitment Increase or such later date as the Administrative Agent and the Borrowers agree (the “Commitment Increase Effective Date”), which in any event shall be on or after the date on which the Administrative Agent shall have received:
(i) a Commitment Increase Agreement providing for such Commitment Increase duly executed by all parties thereto;
(ii) such evidence of appropriate corporate or other organizational authorization on the part of the Borrowers, WIL-Switzerland and the other Obligors with respect to such Commitment Increase as the Administrative Agent may request;
(iii) if requested by the Administrative Agent, an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrowers and the Obligors reasonably satisfactory to the Administrative Agent, covering such matters relating to such Commitment Increase as the Administrative Agent may request;
(iv) a certificate of a Responsible Officer of WIL-Switzerland, dated such Commitment Increase Effective Date, certifying that (A) the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be Article VI and in the other Loan Documents are true and correct in all material respects as of, and as if such representations and warranties were made on, such Commitment Increase Effective Date (unless such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall continue to be true and correct as of such earlier date) and (B) no Default shall have or Event of Default has occurred and is continuing on such Commitment Increase Effective Date; and
(v) other customary closing certificates and documentation (similar to the documentation required to be continuing or would result therefromdelivered on the Effective Date under Section 5.01, and to the extent applicable) relating to such Commitment Increase as the Administrative Agent may reasonably request.
(e) On each Commitment Increase Effective Date, to the extent that there are Revolving Credit Loans outstanding as of such date, (i) each Additional Lender and Increasing Lender that is participating in such Commitment Increase shall, by wire transfer of immediately available funds, deliver to the Administrative Agent its New Funds Amount of each applicable Currency, which amount shall have received constitute Revolving Credit Loans made by such Additional Lender or such Increasing Lender, as applicable, to the Borrowers pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each Reducing Percentage Lender its Reduction Amount of each applicable Currency, which amount, for each such Reducing Percentage Lender, shall constitute a certificate prepayment by the Borrowers pursuant to that effect dated such date and executed by a Financial Officer Section 2.08(a), ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Revolving Credit Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of Borrowers shall pay to each Lender any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and breakage fees or costs or other information so requested amounts owing hereunder in connection with applicable “know your customer” the breakage or reallocation of any outstanding Eurocurrency Loans in accordance with Section 2.13.
(f) For purposes of this Section 2.15 and anti-money-laundering rules and regulations, including, without limitationExhibit E, the PATRIOT Actfollowing defined terms shall have the following meanings: (i) “New Funds Amount” means, in each case at least three (3) Business Days prior for any Additional Lender or Increasing Lender and for any Currency, the amount equal to the effectiveness product of any Accession Agreement and (y) at least three (3) Business Days prior such Additional Lender’s Commitment or the amount by which such Increasing Lender’s Commitment is being increased pursuant to the effectiveness of any Accession Agreementapplicable Commitment Increase, any Loan Party that qualifies as applicable, represented as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, percentage (carried to the extent there are outstanding Advances, twelfth decimal place) of the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Aggregate Commitments after giving effect to such increaseCommitment Increase, and their respective Commitments, after giving effect to such increase, will be re-established, and multiplied by the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.aggregate principal amount of
Appears in 1 contract
Sources: Credit Agreement (Weatherford International Ltd./Switzerland)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time to time, time after the Closing Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver but not the limitation on the amount of Swing Advances specified in Section 2.01(b) or the amount of Letter of Credit Obligations specified in Section 11.02(b) (each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $175,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $75,000,000, (iii) no Bank Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no Commitment Increase shall be effective until the Administrative Agent has consented to such Commitment Increase in writing which consent may not be unreasonably withheld; and (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent fifteen (15) Domestic Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within fifteen (15) Domestic Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to increase its become an Increasing Lender. Any fees paid by the Borrower for a Commitment pursuant Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or BB&T, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower, the other Loan Parties and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower, the other Loan Parties and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrower may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e).
(c) If the aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (an in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Accession Agreement”Commitment Increase Date,” which shall be a Domestic Business Day not less than thirty (30) days prior to the Termination Date). New Commitments The Administrative Agent shall promptly notify the Lenders of such increase and increases the Commitment Increase Date. Each of the Borrower, the Guarantors, the Lenders and the Administrative Agent acknowledges and agrees that each Commitment Increase meeting the conditions set forth in Commitments this Section 2.14 (x) shall become not require the consent of any Guarantor or any Lender other than the Increasing Lenders and Additional Lenders who have agreed to make such Commitment Increase and shall not constitute an amendment, modification or waiver subject to Section 9.05 and (y) subject to clause (d) of this Section 2.14, shall be effective as of the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be effective) unless the conditions set forth in Section 2.14(a) as well as the following conditions precedent are satisfied on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(iithe following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) through a supplement to this Agreement signed by each Increasing Lender (vif any) and Additional Lender (if any), giving effect setting forth the reallocation of Commitments referred to in Section 2.14(e), all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, such Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by each Borrower and each Guarantor, if any, acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), except that for purposes of this Section 2.14(d)(i) the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.01, (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) an opinion or opinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested;
(F) such other documents or items that the Administrative Agent, such Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Advances and correct of the types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.02(a), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Advances and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Revolver Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Usa Truck Inc)
Increase in Commitments. The Borrower Howmet may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) Agent, executed by a Responsible Officer of the Borrower Howmet and one or more financial institutions (any such financial institution referred to in this Section being called an a “Increasing BankProspective Lender”), which may include any BankLender, cause the Commitments of the Increasing Banks Prospective Lenders to be increased (or cause Commitments to be extended by the Increasing Banks to extend new CommitmentsProspective Lenders, as the case may be) in an amount for each Increasing Bank (which shall not be less than $10,000,000) Prospective Lender set forth in such notice; provided, provided however, that (i) the amount of any such increase in the Commitments shall be no Bank shall have any obligation to increase its Commitment pursuant to this paragraphless than $25,000,000, (ii) all new Commitments and the sum of the aggregate amount of increases in existing Commitments becoming effective under this paragraph Section 2.20, during the term of this Agreement Agreement, shall not exceed $200,000,000 in the aggregate500,000,000, (iii) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Increases in Commitments and increases in new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto, on the date specified in the applicable notices notice delivered pursuant to this Section 2.17and (B) in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Prospective Lender is a party, (i) such Increasing Bank Prospective Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank Lender hereunder and (ii) Schedule 2.01(a) shall be deemed to have been amended to reflect the Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01(a) shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no increase in the Total aggregate Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective under this Section unless (i) the Administrative Agent shall have received (A) a written opinion reasonably satisfactory to the Administrative Agent and the Lenders of Delaware counsel, as counsel of Howmet, addressed to the Administrative Agent and the Lenders and (B) documents consistent with those delivered under paragraph (a) of Section 3.01(a)(ii) through (v), 4.04 as to the corporate power and authority of Howmet to borrow hereunder after giving effect to such increase, increase and (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (b) and (c) of Section 4.02 shall be true and correct satisfied (with all references in all material respects and no Default shall have occurred and such paragraphs to a Borrowing being deemed to be continuing or would result therefrom, references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower▇▇▇▇▇▇. Following any increase of a Lender’s Commitment or any extension of a new Commitment pursuant to this paragraph, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days Loans outstanding prior to the effectiveness of any Accession such increase or extension shall continue outstanding until the ends of the respective Interest Periods applicable thereto, and shall then be repaid or refinanced with new Loans made pursuant to Section 2.01; provided that notwithstanding anything to the contrary in this Agreement, the Borrower conditions to borrowing set forth in Section 4.02 shall have provided not apply to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, new Loans to the extent there they are outstanding Advancesin a principal amount not greater than that of the Loans being refinanced. Notwithstanding anything to the contrary in this Agreement, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase no Lender shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 required to the contrarybe a Prospective Lender.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), cause the total Commitments to be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Commitments shall not exceed $1,250,000,000 minus any amount by which the Commitments shall have been reduced pursuant to Section 2.09. Such notice shall set forth the amount of the increase in the total Commitments and the date on which such increase is to become effective. The Company may also request in such notice that each Lender, within ten (10) Business Days of the date thereof, by written notice to the Company and the Administrative Agent, either agree to increase its Commitment (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice within such ten (10) Business Day period shall be deemed to have declined to increase its Commitment). Alternatively, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section clause (a) being called an “Increasing BankAugmenting Lender”; provided that no Augmenting Lender shall be an Ineligible Institution), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments or increase their existing Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) the Company and each Increasing BankAugmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. In addition, if not already any Augmenting Lender that is organized under the laws of a Bank hereunder, jurisdiction outside of the United States of America shall become a party to this Agreement by completing and delivering provide to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. Any increase in the total Commitments may be made in an amount which is less than the increase initially requested by the Company.
(b) On the Increase Effective Date, if any Revolving Loans are outstanding, the Borrowers (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at their option, fund such prepayment by simultaneously borrowing Revolving Loans of the Types and for the Interest Periods specified in one or more Borrowing Requests delivered pursuant to Section 2.03, which Revolving Loans shall be made by the Lenders (including the Increasing Lenders and the Borrower Augmenting Lenders, if any) ratably in accordance with their respective Commitments (an “Accession Agreement”calculated after giving effect to the increase in the total Commitments pursuant to this Section 2.20). New The payments made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto. Increases and new Commitments and increases in Commitments created pursuant to this Section 2.20 shall become effective on the date (the “Increase Effective Date”) specified in the applicable notices notice delivered by the Company pursuant to this Section 2.17. Upon the effectiveness first sentence of any Accession Agreement to which any Increasing Bank is a partyparagraph (a) above; provided that the Company may, with the consent of the Administrative Agent (such Increasing Bank shall thereafter be deemed consent not to be a party unreasonably withheld), extend the Increase Effective Date by up to this Agreement and shall be entitled 30 days by delivering written notice to all rights, benefits and privileges accorded a Bank hereunder and subject the Administrative Agent no less than three Business Days prior to all obligations of a Bank hereunder. the original Increase Effective Date.
(c) Notwithstanding the foregoing, no increase in the Total total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph or addition of an Augmenting Lender shall become effective unless under this Section unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement clauses (c) and (d) of Section 3.04 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer Responsible Party of the BorrowerCompany, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon if required by the Borrower and Administrative Agent, the Administrative Agent to ensure that shall have received (with sufficient copies for each of the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned Lenders) documents consistent with those delivered on the implementation Effective Date under Sections 3.01(b) and 3.02(f)(iv).
(d) Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Lender to the contraryincrease its Commitment hereunder at any time.
Appears in 1 contract
Sources: Credit Agreement (Hubbell Inc)
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, Apache shall have the right to cause from time to time, time an increase in the Commitments of the Lenders by written notice up to $1,000,000,000 in the aggregate (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are consented to by the Administrative Agent (which consent shall promptly deliver a copy to the Banksnot be unreasonably withheld or delayed) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called an each a “Increasing BankCI Lender”); provided, which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided however that (i) at the time of the Commitment Increase, no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregate4,500,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Lender’s Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s prior written consent (which approval shall not consent may be unreasonably withheld) given or withheld in such Lender’s sole and absolute discretion), (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, any Loans have been funded, then Borrower shall be obligated to pay any breakage fees or costs in connection with the representations reallocation of such outstanding Loans, and warranties (v) each CI Lender shall execute a Notice of Commitment Increase and deliver such executed notice to the Borrower Administrative Agent.
(b) Any Commitment Increase must be requested by written notice from Apache to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit G attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Administrative Agent) or on another date agreed to by the Administrative Agent and Apache (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by Borrower pursuant to Section 2.10, ratably in accordance with the respective principal amounts thereof, of the principal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) Borrower shall be true responsible to pay to each Lender any breakage fees or costs in connection with the reallocation of any outstanding Loans.
(d) Each Commitment Increase shall become effective on its Commitment Increase Effective Date and correct upon such effectiveness (i) the Administrative Agent shall record in its records the CI Lender’s information as provided in the Notice of Commitment Increase and pursuant to an Administrative Questionnaire in form satisfactory to the Administrative Agent that shall be executed and delivered by each CI Lender to the Administrative Agent on or before the Commitment Increase Effective Date, (ii) Schedule 2.1 hereof shall be amended and restated to set forth all material respects and no Default Lenders (including any CI Lenders) that will be Lenders hereunder after giving effect to such Commitment Increase (which shall have occurred and be continuing or would result therefrom, set forth in Annex I to the applicable Notice of Commitment Increase) and the Administrative Agent shall have received distribute to each Lender (including each CI Lender) a certificate to that effect dated copy of such date amended and executed by a Financial Officer of the Borrowerrestated Schedule 2.1, and (iii) (x) upon each CI Lender identified on the reasonable request Notice of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to Commitment Increase for such Bank, and such Bank Commitment Increase shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customerLender” for all purposes under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAgreement.
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. (a) The Borrower Company may at any time and from time to timeon one or more occasions, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total US Tranche Commitments or European Tranche Commitments be increased by an amount not less than $25,000,000 (with simultaneous increases in the US Tranche Commitments and the European Tranche Commitments being deemed to be a single increase); provided that the aggregate amount of the increases in the US Tranche Commitments and the European Tranche Commitments shall not exceed $250,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments or European Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its US Tranche Percentage or European Tranche Percentage, as the case may be, of the proposed increased amount. Each applicable Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company's notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender") or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a "Non-Increasing Lender"). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing Bank”"Augmenting Lender"), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new US Tranche Commitments or European Tranche Commitments) , as the case may be, or increase their existing US Tranche Commitments or European Tranche Commitments, as the case may be, in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent Agent, the Issuing Bank and the Swingline Lender (which approval shall not be unreasonably withheld) and (iv) the Borrowers and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect reasonably specify to such increase, (ii) on evidence the effective date Commitment of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies Augmenting Lender and/or its status as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyLender hereunder. On the effective date of any Any increase in the total US Tranche Commitments pursuant to this Section 2.17or European Tranche Commitments, to as the extent there are outstanding Advancescase may be, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase requested by the Borrower and Company if the Administrative Agent Company is unable to ensure that the proportion between the Banks’ outstanding Advancesarrange for, after giving effect or chooses not to such increasearrange for, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAugmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Increase in Commitments. The Borrower may at any time and from time to timeAfter the Effective Date, the Company may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) Agent, executed by a Responsible Officer of the Borrower Company and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”a "Prospective Lender"), which may include any BankLender, cause the Commitments of the Increasing Banks Prospective Lenders to be increased (or cause Commitments to be extended by the Increasing Banks to extend new CommitmentsProspective Lenders, as the case may be) in an amount for each Increasing Bank (which shall not be less than $10,000,000) Prospective Lender set forth in such notice, provided provided, however, that (ia) the aggregate amount of the Lenders' Commitments after giving effect to such increase, together with the aggregate amount of the commitments under the Five-Year Credit Agreement, shall in no Bank shall have any obligation to increase its Commitment pursuant to this paragraphevent exceed US$400,000,000, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iiib) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (ivc) each Increasing BankProspective Lender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Increases and new Commitments and increases in Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereunder, on the date specified in the applicable notices notice delivered pursuant to this Section 2.17and (B) in the case of Prospective Revolving Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Prospective Lender is a party, (i) such Increasing Bank Prospective Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank Lender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no increase in the Total aggregate Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under this Section 3.01(a)(ii) through (v)unless, giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (b) 56 50 and (c) of Section 4.03 shall be true and correct satisfied (with all references in all material respects and no Default shall have occurred and such paragraphs to a Borrowing being deemed to be continuing or would result therefrom, references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerCompany. Following any increase of a Lender's Commitment or any extension of a new Commitment pursuant to this paragraph, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days Standby Loans outstanding prior to the effectiveness of any Accession Agreement, such increase or extension shall continue outstanding until the Borrower shall have provided to such Bankends of the respective Interests Periods applicable thereto, and such Bank shall then be reasonably satisfied with, the documentation and other information so requested in connection repaid or refinanced with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments new Standby Loans made pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower Sections 2.01 and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary2.05.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time and may, from time to time, on any Business Day prior to the Termination Date, increase the aggregate amount of the Commitments by written notice delivering a commitment amount increase request substantially in the form attached hereto as Exhibit H or in such other form acceptable to the Administrative Agent at least five (which shall promptly deliver a copy 5) Business Days prior to the Banksdesired effective date of such increase (the “Commitment Amount Increase”) executed by a Responsible Officer of the Borrower and identifying one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased additional Lenders (or cause additional Commitments for existing Lender(s) or by a combination of existing Lenders and additional Lenders) and the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank of its Commitment (which shall not be less than $10,000,000) set forth in such noticeor additional amount of its Commitment(s)); provided, provided however, that (i) no Bank the aggregate amount of the Commitments shall have any obligation not be incurred to increase its Commitment pursuant to this paragraphan amount in excess of $500,000,000, (ii) all new Commitments and increases any Commitment Amount Increase shall be in existing Commitments becoming effective under this paragraph during the term of this Agreement shall an amount not exceed less than $200,000,000 in the aggregate5,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Default or Event of Default shall have occurred and be subject to continuing at the approval time of the Administrative Agent (which approval shall not be unreasonably withheld) request or the effective date of the Commitment Amount Increase, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement Section 6 hereof shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom(where not already qualified by materiality, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested otherwise in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (yall respects) at least three (3) Business Days prior to the effectiveness time of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On request and on the effective date of such Commitment Amount Increase (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date). The effective date of the Commitment Amount Increase shall be as set forth in the related commitment amount increase request. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Percentage of Loans. It shall be a condition to such effectiveness that (i) if any increase in SOFR Loans are outstanding on the date of such effectiveness, such SOFR Loans shall be deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the Lenders pursuant to Section 1.11 hereof and (ii) the Borrower shall not have terminated any portion of the Commitments pursuant to this Section 2.171.12 hereof. The Borrower agrees to pay any reasonable and documented, out-of-pocket expenses of the Administrative Agent relating to any Commitment Amount Increase and, solely to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by in writing between Administrative Agent and the Borrower and the Administrative Agent (it being acknowledged that Borrower shall have no obligation to ensure that the proportion between the Banks’ outstanding Advancesenter into any such agreement), after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangementsany arrangement fees related thereto. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Commitment and no Lender’s Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment.
Appears in 1 contract
Increase in Commitments. The Borrower may Company may, at any time and from time to time, after the Closing Date by written notice to the Administrative Agent Agent, propose an increase in the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments hereunder (which shall promptly deliver each such proposed increase being a copy to the Banks“Commitment Increase”) executed either by having a Responsible Officer Lender increase its Commitment of the Borrower and one or more financial institutions applicable Class then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment of the applicable Class hereunder (each an “Assuming Lender”), which may include any Bankin each case, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the Administrative Agent (which approval shall not to be unreasonably withheld); provided that each Assuming Lender with a NAIC Tranche Commitment shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the Class of the Commitments which is being increased, (iii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iv) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (ivv) each Increasing Bank, if not already a Bank hereunder, the Company’s election whether to increase the Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall become a party be subject to this Agreement by completing and delivering to the following additional conditions:
(i) unless the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyotherwise agrees, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankAssuming Lender as part of any Commitment Increase shall be in a minimum amount of at least $25,000,000;
(ii) pursuant to this paragraph shall become effective unless (i) the Administrative Agent otherwise agrees, each Commitment Increase shall have received documents consistent with those delivered under Section 3.01(a)(iibe in an amount of at least $25,000,000;
(iii) through (v), immediately after giving effect to such increaseany Commitment Increase, the total Commitments hereunder shall not exceed $5,000,000,000;
(iiiv) no Default has occurred and is continuing on the effective date of such increase, relevant Commitment Increase Date or shall result from any Commitment Increase; and
(v) the representations and warranties of the Borrower and the Guarantors Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of such representations and no Default shall warranties qualified as to materiality, in all respects) on and as of the relevant Commitment Increase Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have occurred been made as of a specific date, as of such specific date). In connection with any Commitment Increase, the Company may, at its option, elect to ratably increase the Foreign Currency Sublimit Dollar Amount in proportion to the amount of such Commitment Increase (each such proposed increase being a “Foreign Currency Sublimit Increase”). Each Commitment Increase (and be continuing or would result the increase of the applicable Commitment of each Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom), and if elected by the Company, the corresponding Foreign Currency Sublimit Increase, shall become effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate of a Responsible Officer stating that the conditions with respect to such Commitment Increase under this Section have been satisfied and (b) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its Commitment (or an increase of its applicable Commitment, as applicable), duly executed by each such Lender and the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender, together with such certificate of such Responsible Officer, the Administrative Agent shall have received a certificate to that effect dated record the information contained in such date agreement in the Register and executed by a Financial Officer give prompt notice of the Borrower, relevant Commitment Increase and (iii) (x) upon if elected by the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession AgreementCompany, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17corresponding Foreign Currency Sublimit Increase, to the extent Company and the Lenders (including, if applicable, each Assuming Lender). On each Commitment Increase Date, if there are Loans of the applicable Class then outstanding, each applicable Borrower shall simultaneously (i) prepay in full the outstanding AdvancesLoans of such Class made to such Borrower immediately prior to giving effect to the relevant Commitment Increase in accordance with Section 2.08 and (ii) at such Borrower’s option in accordance with this Agreement, such Borrower may request to borrow new Loans of such Class from all the relevant Lenders (including, if applicable, any Assuming Lender) such that, after giving effect thereto, the parties hereto shall implement Loans of such arrangements as may be agreed upon Class are held ratably by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, relevant Lenders in accordance with their respective Commitments of such Class (after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangementsCommitment Increase). This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase any of its Commitments hereunder and any election to do so shall be in the sole discretion of such Lender.
Appears in 1 contract
Sources: Credit Agreement (American International Group Inc)
Increase in Commitments. (a) The Borrower may shall have the right at any time and from time to time, by written notice time after the Closing Date and prior to the Administrative Agent date that is thirty (which shall promptly deliver a copy 30) days prior to the Banks) executed final Facility Termination Date to increase the Aggregate Commitment (each such proposed increase being a “Commitment Increase”), either by having a Responsible Officer of the Borrower and one or more financial institutions Lender increase its Commitment then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by adding as a Lender with a new Commitment hereunder a Person which is not then a Lender (each an “Assuming Lender”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to case with the approval of the Administrative Agent Agent, each LC Issuer and the Swingline Lender (which such approval shall not to be unreasonably withheld), which notice shall specify the name of each Increasing Lender and/or Assuming Lender, as applicable, the amount of the Commitment Increase and the portion thereof being assumed by each such Increasing Lender or Assuming Lender, and the date on which such increase is to be effective (the “Commitment Increase Date”), which shall be a Business Day at least three (3) Business Days after delivery of such notice; provided that no Lender shall have any obligation hereunder to become an Increasing Lender and any election to do so shall be in the sole discretion of each Lender; provided further that: (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or a higher integral multiple of $1,000,000; (ii) immediately after giving effect to any Commitment Increase, the Aggregate Commitment shall not exceed $450,000,000 and the aggregate amount of all Commitment Increases shall not exceed $150,000,000; (iii) the sum of the increases in Commitments of the Increasing Lenders and the new Commitments of the Assuming Lenders shall not exceed the requested Commitment Increase; (iv) no Default or Unmatured Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase; and (v) the representations and warranties contained in Article 5 (other than in Section 5.5) shall be true on and as of the Commitment Increase Date as if made on and as of such date (or, if any such representation and warranty is expressly stated to have been made as of a specified date, as of such specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each Increasing BankLender and/or the new Commitment of each Assuming Lender, if not already a Bank hereunderas applicable, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments resulting therefrom) shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness as of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date; provided that:
(i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect on or prior to 10:00 a.m. on such Commitment Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions to such increase, Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the resolutions adopted by the Borrower approving or consenting to such Commitment Increase; (ii) on the effective date of such increasewith respect to each Assuming Lender, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerreceived, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days on or prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to 10:00 a.m. on such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requestsCommitment Increase Date, a Beneficial Ownership Certification in relation to such Loan Party. On Joinder Agreement among the effective date of any increase in the Commitments pursuant to this Section 2.17Assuming Lender, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent; and (iii) each Increasing Lender shall have delivered to the Administrative Agent, on or prior to 10:00 a.m. on such Commitment Increase Date, confirmation in writing satisfactory to the Administrative Agent as to ensure that the proportion between the Banks’ outstanding Advancesits increased Commitment, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness with a copy of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 confirmation to the contraryBorrower.
(c) On each Commitment Increase Date upon such time as the applicable conditions set forth in Sections 2.20(a) and 2.20
Appears in 1 contract
Sources: Credit Agreement
Increase in Commitments. The Borrower may at (i) At any time and from time to time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $250,000,000; provided that, without the prior written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer consent of the Borrower Required Lenders, (a) the Aggregate Commitment shall at no time exceed $900,000,000 minus the aggregate amount of all reductions in the Aggregate Commitment previously made pursuant to Section 2.5(a); (b) the Company shall not be entitled to make more than one such request during any calendar year; and one or more financial institutions (any c) each such financial institution referred to request shall be in this Section being called an “Increasing Bank”)a minimum amount of at least $50,000,000 and increments of $5,000,000 in excess thereof, which may include any Bank, cause the Commitments of the Increasing Banks to and shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank such that the aggregate principal amount of Loans to a Dutch Borrower which are purchased by a Proposed New Lender (other than a Proposed New Lender which is a Professional Market Party) pursuant to Section 2.5(b)(ii) shall not be less than $10,000,000the equivalent in Dollars (calculated on the basis of the Spot Rate of the Administrative Agent as of the date of such purchase) set forth of €100,000 in respect of each Dutch Borrower which then has outstanding borrowings hereunder. Such request shall be made in a written notice given to the Administrative Agent and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such noticeincrease, provided 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 proportions that (i) no Bank their respective Commitments bear to the Aggregate Commitment. No Lender shall have any obligation to increase its Commitment pursuant to this paragrapha Commitment Increase Notice. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (iiany such notice to the Administrative Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such fifteen (15) all new Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and each Arranger shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company’s Commitment Increase Notice. In the event that the increases of Commitments set forth in existing Commitments becoming the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective under this paragraph during date the term Company may notify the Administrative Agent of this Agreement any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not exceed $200,000,000 be unreasonably withheld). If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the aggregateLender Increase Notices. Based upon the Lender Increase Notices, (iii) each Increasing Bankany allocations made in connection therewith and any notice regarding any Proposed New Lender, if not already a Bank hereunderapplicable, the Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the approval following conditions precedent: (A) the Company shall have obtained the consent thereto of each Guarantor and its reaffirmation of the Administrative Agent (Loan Document(s) executed by it, which approval consent and reaffirmation shall not be unreasonably withheld) in writing and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing in form and delivering to the Administrative Agent a duly executed accession agreement in a form substance reasonably satisfactory to the Administrative Agent and the Borrower Agent, (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on B) as of the date specified in of the applicable notices delivered pursuant to this Section 2.17. Upon Commitment Increase Notice and as of the effectiveness proposed effective date of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Aggregate Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the all representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects as though made on such date and no Default event shall have occurred and then be continuing which constitutes a Default or would result therefromUnmatured Default, (C) the Borrowers, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit L hereto, (D) counsel for the Company and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrowers and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article V or that the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulationssuch increase. If any fee shall be charged by the Lenders in connection with any such increase, includingsuch fee shall be in accordance with then prevailing market conditions, without limitationwhich market conditions shall have been reasonably documented by the Administrative Agent to the Company. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the PATRIOT Act, in Administrative Agent shall promptly advise the Company and each case at least three (3) Business Days prior to Lender of the effectiveness effective date of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Partyincrease. On Upon the effective date of any increase in the Commitments Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder and thereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and (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 this Section 2.17clause (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 and L/C Obligations in the respective Dollar Amounts and percentages necessary so that, from and after such sale, each such Selling Lender’s outstanding Loans and L/C Obligations shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans and L/C Obligations. 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 and L/C Obligations purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s outstanding Loans and L/C Obligations shall equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans and L/C Obligations. 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 extent there are Administrative Agent. The Administrative Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Loans and L/C Obligations being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Loans and L/C Obligations, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the portion of the outstanding AdvancesLoans and L/C Obligations being sold by such Selling Lender. Each Buying Lender hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the parties hereto shall implement foregoing sentence, each such arrangements as may be agreed upon by Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the Borrower 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 Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Company hereby agrees to ensure that compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the proportion between the Banks’ outstanding Advances, after giving effect to such increase, sale and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness assignment of such increase shall be conditioned any Eurodollar Loan hereunder on the implementation of such arrangements. This Section 2.17 shall supersede any provisions terms and in the manner as set forth in Section 2.13 or 10.01 to the contrary4.4.
Appears in 1 contract
Sources: Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Increase in Commitments. The Borrower may at [Intentionally Omitted].
(a) At any time and from time to timetime prior to the Maturity Date, the Company may, by written notice to the Administrative Agent (which the Administrative Agent shall promptly deliver a copy furnish to each Lender in the Banks) executed by a Responsible Officer of the Borrower and applicable Tranche), request that one or more Persons (which shall include the Lenders in the applicable Tranche, as provided below) offer to increase their Commitments under any Tranche (if they are Lenders) or to make additional Commitments or Loans under any Tranche (if they are not already Lenders) (such increased and/or additional Commitments and/or additional Loans being, in the case of any Tranche, a “Tranche Increase”) under this paragraph (a), it being understood that if such offer is to be made by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 11.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld). The minimum aggregate amount of any Tranche Increase shall be $25,000,000 in the case of the US Tranche, $5,000,000 in the case of the Canadian Tranche, and $5,000,000 in the case of the UK Tranche. In no event shall the aggregate amount of all Tranche Increases pursuant to this paragraph (a) exceed $350,000,000. The Company shall offer each relevant Lender the opportunity to increase its applicable Tranche Commitment or make additional Loans by its applicable Tranche Percentage of the proposed increased amount of any Tranche. Each Lender in such Tranche shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company’s notice, either agree to increase its applicable Tranche Commitment or make additional Loans, as applicable, by all or a portion of the offered amount or decline to increase its applicable Tranche Commitment or make additional Loans, as applicable (and unless a Lender shall deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its applicable Tranche Commitment or make additional Loans, as applicable). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the relevant Lenders shall have agreed pursuant to the preceding sentence to increase their applicable Tranche Commitments or make additional Loans, as applicable, by an aggregate amount less than the increase in the total Tranche Commitments or Loans in such Tranche requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”)institutions, which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) applicable Tranche Commitments or make additional Loans, as applicable, or increase their existing applicable Tranche Commitments or make additional Loans, as applicable, in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in equal to the unsubscribed amount. In the event that one or more of such notice, provided that (i) no Bank shall have any obligation Persons offer to increase its Commitment pursuant to this paragraphor enter into such Commitments or make additional Loans, (ii) all new Commitments as applicable, and increases in existing Commitments becoming effective under this paragraph during such Persons, the term of this Agreement shall not exceed $200,000,000 in the aggregateCompany, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of any other applicable Borrower and the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering agree as to the Administrative Agent a duly executed accession agreement amount of such Commitments or additional Loans, as applicable, to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in a form reasonably satisfactory to connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and the Borrower (any other Applicable Agent shall execute and deliver an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant appropriate amendment to this Section 2.17. Upon Agreement, which amendment shall specify, among other things, the effectiveness of procedures for reallocating any Accession Agreement to which any Increasing Bank outstanding Revolving Credit Exposure under the Tranche that is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. the Tranche Increase effected by such amendment.
(b) Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankLender) pursuant to this paragraph or addition of a new Lender shall become effective unless under this Section unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (a) and (b) of Section 4.02 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer the chief financial officer of the BorrowerCompany, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to ensure that the proportion between corporate power and authority of the Banks’ outstanding Advances, applicable Borrowers to borrow hereunder after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Yrc Worldwide Inc)
Increase in Commitments. (a) The Borrower Company may at any time and from time to timeon a single occasion, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total US Tranche Commitments or European Tranche Commitments be increased by an amount not less than $25,000,000 (with simultaneous increases in the US Tranche Commitments and the European Tranche Commitments being deemed to be a single increase); provided that the aggregate amount of the increases in the US Tranche Commitments and the European Tranche Commitments shall not exceed $100,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments or European Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its US Tranche Percentage or European Tranche Percentage, as the case may be, of the proposed increased amount. Each applicable Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company's notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender") or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a "Non-Increasing Lender"). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing Bank”"Augmenting Lender"), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new US Tranche Commitments or European Tranche Commitments) , as the case may be, or increase their existing US Tranche Commitments or European Tranche Commitments, as the case may be, in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent Agent, the Issuing Bank and the Swingline Lender (which approval shall not be unreasonably withheld) and (iv) the Borrowers and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect reasonably specify to such increase, (ii) on evidence the effective date Commitment of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies Augmenting Lender and/or its status as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyLender hereunder. On the effective date of any Any increase in the total US Tranche Commitments pursuant to this Section 2.17or European Tranche Commitments, to as the extent there are outstanding Advancescase may be, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase requested by the Borrower and Company if the Administrative Agent Company is unable to ensure that the proportion between the Banks’ outstanding Advancesarrange for, after giving effect or chooses not to such increasearrange for, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAugmenting Lenders.
Appears in 1 contract
Increase in Commitments. The Borrower may Company shall have the right at any time and from time to time, increase the aggregate Commitments of either Class hereunder (so long as the aggregate Commitments hereunder will not exceed U.S. $500,000,000 after giving effect to any such increase) by written notice adding to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and this Agreement one or more financial institutions other lenders (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any BankLender, cause with the Commitments consent of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitmentssuch Lender, each such lender an "Additional Lender") in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the applicable Administrative Agent (which approval shall not be unreasonably withheld) and (iv) ), each Increasing Bank, if not already a Bank hereunder, of which Additional Lenders shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession have entered into an agreement in a form reasonably and substance satisfactory to the Company and the applicable Administrative Agent pursuant to which such Additional Lender shall undertake either a Canadian Revolving Commitment or a U.S. Revolving Commitment (if any such Additional Lender is (a) a Canadian Revolving Credit Lender, its Commitment shall be in addition to such Canadian Revolving Lender's Canadian Revolving Commitment hereunder and (b) a U.S. Revolving Credit Lender, its Commitment shall be in addition to such U.S. Revolving Lender's U.S. Revolving Commitment hereunder) which Commitment shall be in minimum amounts consistent with Section 2.02(c), and upon the Borrower effectiveness of such agreement (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified of the effectiveness of any such agreement being hereinafter referred to as the "Increased Commitment Date") such Additional Lender shall thereupon become a "Lender" for all purposes of this Agreement. Credit Agreement Notwithstanding the foregoing, the increase in the applicable notices delivered aggregate Commitments hereunder pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank 2.19 shall thereafter not be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless unless:
(i) the Company shall have given the applicable Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect notice of any such increase at least 3 Business Days prior to any such increase, Increased Commitment Date;
(ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or would result therefromon the Increased Commitment Date;
(iii) in the case of any increase of Canadian Revolving Commitments, no Bankers' Acceptance Loans shall be outstanding and, for any Canadian Loan that is outstanding, BCFPI shall have borrowed from each of the Additional Lenders, and the Administrative Agent Additional Lenders shall have received made Loans to BCFPI, and notwithstanding the provisions of Section 2.17(c) requiring that borrowings and prepayments of a certificate to that effect dated such date Class be made ratably in accordance with the aggregate amount of principal of and executed by a Financial Officer accrued interest of the BorrowerLoans of such Class held by the Lenders of such Class, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower BCFPI shall have provided to prepaid Canadian Loans held by the other Canadian Revolving Credit Lenders in such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements amounts as may be agreed upon by the Borrower and the Administrative Agent to ensure necessary, so that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseLoans and prepayments, the Loans shall be held by the Canadian Revolving Credit Lenders pro rata in accordance with the respective amounts of their Canadian Revolving Commitments (as so increased);
(iv) in the case of any increase of U.S. Revolving Commitments, for any Syndicated Loan that is outstanding hereunder, each Borrower to whom such Syndicated Loans were made shall have borrowed from each of the Additional Lenders, and their respective Commitmentsthe Additional Lenders shall have made Syndicated Loans to such Borrower (in the case of Eurodollar Loans, with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), and notwithstanding the provisions of Section 2.17(c) requiring that borrowings and prepayments of a Class be made ratably in accordance with the aggregate amount of principal of and accrued interest of the Syndicated Loans of such Class held by the Lenders of such Class, such Borrower shall have prepaid Syndicated Loans held by the other U.S. Revolving Credit Lenders in such amounts as may be necessary, together with any amounts payable under Section 2.15 as a result of such prepayment, so that after giving effect to such increaseLoans and prepayments, will be re-established, the Syndicated Loans (and the effectiveness Interest Period(s) of such increase Syndicated Eurodollar Loans shall be conditioned held by the U.S. Revolving Credit Lenders) pro rata in accordance with the respective amounts of their U.S. Revolving Commitments (as so increased); and
(v) there shall have been no reduction of the Commitments pursuant to Section 2.08(b) hereof, on the implementation of or prior to any such arrangementsIncreased Commitment Date. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Bowater Inc)
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, WIL shall have the right, without the consent of the Lenders but with the prior approval of the Administrative Agent and the Issuing Bank (not to be unreasonably withheld, delayed or conditioned), to cause from time to time, time an increase in the aggregate Commitments (a “Commitment Increase”) by written notice adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Administrative Agent and the Issuing Bank (which shall promptly deliver each a copy to the Banks“CI Lender”) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions (any such financial institution referred existing Lenders to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new increase their respective Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that (i) no Bank Event of Default shall have any obligation to increase its occurred and be continuing on the effective date of such Commitment pursuant to this paragraphIncrease, (ii) all new Commitments and increases no such Commitment Increase shall be in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed an amount less than $200,000,000 in the aggregate15,000,000, (iii) each Increasing Bankno such Commitment Increase shall cause the aggregate Commitments to exceed $1,500,000,000, if not already (iv) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and (v) if, on the effective date of such Commitment Increase, any Loans have been funded, then the Borrowers shall be obligated to pay any breakage fees or costs or other amounts owing hereunder in connection with the breakage or reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from WIL to the Administrative Agent (a Bank hereunder, “Notice of Commitment Increase”) in the form of Exhibit E attached hereto and shall be subject to the approval of the Administrative Agent (which and the Issuing Bank, such approval shall not to be unreasonably withheld, delayed or conditioned. Each such Notice of Commitment Increase shall specify (i) the proposed effective date of such Commitment Increase, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Commitment Increase, (ii) the amount of the requested Commitment Increase (provided that after giving effect to such requested Commitment Increase, the aggregate Commitments do not exceed the amount set forth in subparagraph (a)(iii) above), (iii) the identity of each CI Lender or Lender that has agreed in writing to increase its Commitment hereunder, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing the amount of the respective Commitments of the then existing Lenders and delivering to the CI Lenders from and after the Commitment Increase Effective Date. The Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to and the Issuing Bank shall review each Notice of Commitment Increase and shall notify WIL whether or not the Administrative Agent and the Borrower (an “Accession Agreement”)Issuing Bank approve the proposed Commitment Increase, such approval not to be unreasonably withheld, delayed or conditioned. New Commitments If the Administrative Agent and increases in Commitments the Issuing Bank approve such Commitment Increase, the Administrative Agent and the Issuing Bank shall become execute a counterpart to the Notice of Commitment Increase and such Commitment Increase shall be effective on the proposed effective date specified set forth in such notice (if the Administrative Agent and the Issuing Bank consented to such Commitment Increase prior to such proposed date) or on another date as determined by WIL and agreed to by the Administrative Agent and the Issuing Bank (such date referred to herein as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount of each applicable notices delivered Currency, which amounts, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrowers pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyon such Commitment Increase Effective Date, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (iii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each Reducing Percentage Lender its Reduction Amount of each applicable Currency, which amounts, for each such Reducing Percentage Lender, shall have received documents consistent with those delivered under constitute a prepayment by the Borrowers pursuant to Section 3.01(a)(ii) through (v2.07(a), giving effect to such increaseratably in accordance with the respective principal amounts thereof, (ii) on of the effective date principal amounts of all then outstanding Loans of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerReducing Percentage Lender, and (iii) (x) upon the reasonable request of Borrowers shall pay to each Lender any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and breakage fees or costs or other information so requested amounts owing hereunder in connection with applicable “know your customer” the breakage or reallocation of any outstanding Loans.
(d) For purposes of this Section 2.15 and anti-money-laundering rules and regulations, including, without limitationExhibit E, the PATRIOT Actfollowing defined terms shall have the following meanings: (i) “New Funds Amount” means, for any Lender or CI Lender and for any Currency, the amount equal to the product of such Lender’s increased Commitment or such CI Lender’s Commitment (as applicable) represented as a percentage of the aggregate Commitments after giving effect to the Commitment Increase, times the aggregate principal amount of the outstanding Loans denominated in each case at least three (3) Business Days such Currency immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, aggregate principal amount of Loans as a result of borrowings made after giving effect to the extent there are outstanding Advances, Commitment Increase on such Commitment Increase Effective Date); (ii) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to a Commitment Increase that does not increase its respective Commitment as a result of such Commitment Increase and whose relative percentage of the parties hereto aggregate Commitments shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, reduced after giving effect to such increaseCommitment Increase; and (iii) “Reduction Amount” means, for any Reducing Percentage Lender and their respective Commitmentsfor any Currency, the amount by which such Reducing Percentage Lender’s outstanding Loans denominated in such Currency decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryapplicable Commitment Increase).
Appears in 1 contract
Increase in Commitments. The Borrower may Company may, at any time and from time to time, after the Closing Date by written notice to the Administrative Agent Agent, propose an increase in the total Commitments hereunder (which shall promptly deliver each such proposed increase being a copy to the Banks“Commitment Increase”) executed either by having a Responsible Officer of the Borrower and one or more financial institutions Lender increase its Commitment then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment hereunder (each an “Assuming Lender”), which may include any Bankin each case, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the Administrative Agent (which approval shall not to be unreasonably withheld, conditioned or delayed); provided that each Assuming Lender shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iii) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (iv) each Increasing Bank, if not already a Bank hereunder, the Company’s election whether to increase the Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall become a party be subject to this Agreement by completing and delivering to the following additional conditions:
(i) unless the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyotherwise agrees, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankAssuming Lender as part of any Commitment Increase shall be in a minimum amount of at least $25,000,000;
(ii) pursuant to this paragraph shall become effective unless (i) the Administrative Agent otherwise agrees, each Commitment Increase shall have received documents consistent with those delivered under Section 3.01(a)(iibe in an amount of at least $25,000,000;
(iii) through (v), immediately after giving effect to such increaseany Commitment Increase, the aggregate amount of Commitment Increases hereunder shall not exceed $500,000,000;
(iiiv) no Default has occurred and is continuing on the effective date of such increase, relevant Commitment Increase Date or shall result from any Commitment Increase; and
(v) the representations and warranties of the Borrower and the Guarantors Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of such representations and no Default shall have occurred warranties qualified as to materiality, in all respects) on and be continuing or would result therefrom, as of the relevant Commitment Increase Date as if made on and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by (or, if any such representation or warranty is expressly stated to have been made as of a Financial Officer of the Borrowerspecific date, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryspecific date).
Appears in 1 contract
Sources: Credit Agreement (American International Group, Inc.)
Increase in Commitments. The Borrower may Company may, at any time and from time to time, after the Closing Date by written notice to the Administrative Agent Agent, propose an increase in the total Commitments hereunder (which shall promptly deliver each such proposed increase being a copy to the Banks“Commitment Increase”) executed either by having a Responsible Officer of the Borrower and one or more financial institutions Lender increase its Commitment then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment hereunder (each an “Assuming Lender”), which may include any Bankin each case, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the Administrative Agent (which approval shall not to be unreasonably withheld); provided that each Assuming Lender shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender and (iviii) each Increasing Bank, if not already the date on which such Commitment Increase is to be effective (a Bank hereunder, “Commitment Increase Date”) (which shall become be a party Business Day at least five Business Days after delivery of such notice and 30 days prior to this Agreement by completing and delivering the Commitment Termination Date). Each Commitment Increase shall be subject to the following additional conditions:
(i) unless the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyotherwise agrees, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any BankAssuming Lender as part of any Commitment Increase shall be in a minimum amount of at least $25,000,000;
(ii) pursuant to this paragraph shall become effective unless (i) the Administrative Agent otherwise agrees, each Commitment Increase shall have received documents consistent with those delivered under Section 3.01(a)(iibe in an amount of at least $25,000,000;
(iii) through (v), immediately after giving effect to such increaseany Commitment Increase, the total Commitments hereunder shall not exceed $2,000,000,000;
(iiiv) no Default has occurred and is continuing on the effective date of such increase, relevant Commitment Increase Date or shall result from any Commitment Increase; and
(v) the representations and warranties of the Borrower and the Guarantors Company set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of such representations and no Default warranties qualified as to materiality, in all respects) on and as of the relevant Commitment Increase Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). Each Commitment Increase (and the increase of the Commitment of each Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate of a Responsible Officer of the Company stating that the conditions with respect to such Commitment Increase under this Section have occurred been satisfied and be continuing (b) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its Commitment (or would result therefroman increase of its Commitment, as applicable), duly executed by each such Lender and the Company and acknowledged by the Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender, together with such certificate of such Responsible Officer, the Administrative Agent shall have received a certificate to that effect dated record the information contained in such date agreement in the Register and executed by a Financial Officer give prompt notice of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior relevant Commitment Increase to the effectiveness of any Accession Agreement, Company and the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, Lenders (including, without limitationif applicable, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyAssuming Lender). On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment hereunder and any election to do so shall be in the sole discretion of such Lender.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (American International Group Inc)
Increase in Commitments. The Borrower may Borrowers may, at any time and prior to the expiration or termination of the Commitments, request an increase in Commitments from time to time, by written time upon not less than 45 days’ prior notice delivered to the Administrative Agent Agent, as long as (which shall promptly deliver a) each requested increase is in a copy minimum amount of $5,000,000.00 and is offered on terms identical to the Banks) executed existing Commitments (including, without limitation, with respect to pricing, fees and maturity), except that the Borrowers may pay a closing fee in connection with such increase, such fee to be specified by a Responsible Officer Borrowers, but in no event to exceed 50 basis points of the Borrower and one or more financial institutions increased Commitments, (any such financial institution referred to in b) total increases under this Section being called an “Increasing Bank”)after the date hereof do not exceed $25,000,000.00 in the aggregate for all such increases, which may include any Bank, cause the Commitments of the Increasing Banks to be increased and no more than four (or cause the Increasing Banks to extend new Commitments4) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph are made during the term of this Agreement and (c) no Default or Event of Default has occurred and is continued or would be caused by such increase or any substantially concurrent borrowing thereunder. Agent shall not exceed $200,000,000 promptly notify Lenders in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval writing of the Administrative requested increase and, within ten (10) Business Days thereafter, each Lender shall notify Agent (which approval if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and have declined an increase. No Lender shall be entitled obligated to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total provide any increased Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreementit so agrees; provided, the Borrower shall have provided first request such increase from each existing Lender in accordance with such Lender’s pro rata share of the existing Commitment (as of the date of such request) prior to such Bankapproaching any other Person, and each such Bank Lender may elect or decline, in its sole discretion, to provide such increase. If existing Lenders fail to commit to the full requested increase as contemplated above, Eligible Assignees may issue additional Commitments for any unallocated portion of the requested increase and shall become Lenders hereunder in accordance with the terms hereof. Total Commitments shall be increased by the requested amount (or such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, provided the conditions set forth in Section 6.2 are satisfied at such time. Agent, Borrowers, and the new and existing Lenders shall execute and deliver such documents and agreements as Agent reasonably satisfied with, deems appropriate to evidence the documentation increase in and other information so requested allocations of Commitments in connection accordance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Partyterms above. On the effective date of any increase in an increase, the Revolver Usage and other exposures under the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increasereallocated among Lenders, and their respective settled by Agent as necessary, in accordance with Lenders’ adjusted shares of Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Increase in Commitments. The Borrower may Company shall have the right at any time and from time to time, by written notice increase the aggregate Commitments hereunder to the Administrative Agent (which shall promptly deliver a copy to extent that the Banks) executed by a Responsible Officer sum of the Borrower and aggregate Commitments hereunder do not exceed $2,750,000,000 by adding to this Agreement one or more financial institutions other banks (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause with the Commitments consent of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to each such bank an “Additional Bank”) with the approval of the Administrative Agent (and with respect to any such bank which is not an existing Bank, the approval of each Issuing Lender), in each case, which approval shall not be unreasonably withheld) , each of which Additional Banks shall have entered into an agreement in form and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party substance satisfactory to this Agreement by completing the Company and delivering to the Administrative Agent pursuant to which such Additional Bank shall undertake a duly executed accession Commitment (if any such Additional Bank is a Bank, its Commitment shall be in addition to such Bank’s Commitment hereunder) which such Commitment shall be in an amount at least equal to $10,000,000 or a larger multiple of $1,000,000, and upon the effectiveness of such agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon of the effectiveness of any Accession Agreement such agreement being hereinafter referred to which any Increasing Bank is a party, as the “Increased Commitment Date”) such Increasing Additional Bank shall thereafter be deemed to be thereupon become a party to “Bank” for all purposes of this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunderAgreement. Notwithstanding the foregoing, no the increase in the Total aggregate Commitments (or in the Commitment of any Bank) hereunder pursuant to this paragraph Section 2.11 shall become not be effective unless unless:
(i) the Company shall have given the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect notice of any such increase at least 3 Business Days prior to any such increase, Increased Commitment Date;
(ii) on the effective date no Default or Event of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or would result therefromon the Increased Commitment Date; and
(iii) if any Loan shall be outstanding hereunder, the Company shall have borrowed from each of the Additional Banks, and the Administrative Agent Additional Banks shall have received a certificate made, Loans to that effect dated such date and executed by a Financial Officer the Company (in the case of the Borrower, and (iii) (x) upon Term Benchmark Loans, with Interest Period(s) ending on the reasonable request date(s) of any Bank made at least five (5then outstanding Interest Period(s) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior RFR Loans, with the same interest payment dates as the interest payment dates applicable to the effectiveness then outstanding RFR Loans), and (notwithstanding the provisions of any Accession Agreement, any Loan Party Section 4.02 hereof requiring that qualifies as a “legal entity customer” under borrowings and prepayments be made ratably in accordance with the Beneficial Ownership Regulation principal amounts of the Loans held by the Banks) the Company shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification prepaid Loans held by the other Banks in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements amounts as may be agreed upon by the Borrower and the Administrative Agent to ensure necessary, so that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseLoans and prepayments, the Loans (and their respective Commitments, after giving effect Interest Period(s) of Term Benchmark Loan(s) and interest payment dates applicable to such increase, will be re-established, and the effectiveness of such increase RFR Loans) shall be conditioned on held by the implementation Banks pro rata in accordance with the respective amounts of such arrangementstheir Commitments (as so increased). This Section 2.17 Promptly following any increase of Commitments pursuant to this Section, the Administrative Agent shall supersede any provisions in Section 2.13 or 10.01 provide notice thereof to each of the contraryBanks.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total Commitments be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Commitments shall not exceed $250,000,000 minus any amount by which the Commitments shall have been reduced pursuant to Section 2.07. Such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 days after the date of the Company’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment). In the event that, on the 10th day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section clause (a) being called an “Increasing BankAugmenting Lender”), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) Commitments or increase their existing Commitments in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) the Company and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect reasonably specify to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies evidence its Commitment and/or its status as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyLender hereunder. On the effective date of any Any increase in the total Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase requested by the Borrower and Company if the Administrative Agent Company is unable to ensure that the proportion between the Banks’ outstanding Advancesarrange for, after giving effect or chooses not to such increasearrange for, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAugmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Hubbell Inc)
Increase in Commitments. The Borrower may Company shall have the right at any time and from time to time, by written notice increase the aggregate Commitments hereunder to the Administrative Agent (which shall promptly deliver a copy to extent that the Banks) executed by a Responsible Officer sum of the Borrower and aggregate Commitments hereunder do not exceed $2,750,000,000 by adding to this Agreement one or more financial institutions other banks (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause with the Commitments consent of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to each such bank an “Additional Bank”) with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) ), each of which Additional Banks shall have entered into an agreement in form and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party substance satisfactory to this Agreement by completing the Company and delivering to the Administrative Agent pursuant to which such Additional Bank shall undertake a duly executed accession Commitment (if any such Additional Bank is a Bank, its Commitment shall be in addition to such Bank’s Commitment hereunder) which such Commitment shall be in an amount at least equal to $10,000,000 or a larger multiple of $1,000,000, and upon the effectiveness of such agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon of the effectiveness of any Accession Agreement such agreement being hereinafter referred to which any Increasing Bank is a party, as the “Increased Commitment Date”) such Increasing Additional Bank shall thereafter be deemed to be thereupon become a party to “Bank” for all purposes of this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunderAgreement. Notwithstanding the foregoing, no the increase in the Total aggregate Commitments (or in the Commitment of any Bank) hereunder pursuant to this paragraph Section 2.11 shall become not be effective unless unless:
(i) the Company shall have given the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect notice of any such increase at least 3 Business Days prior to any such increase, Increased Commitment Date;
(ii) on the effective date no Default or Event of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or would result therefromon the Increased Commitment Date; and
(iii) if any Syndicated Loan shall be outstanding hereunder, the Company shall have borrowed from each of the Additional Banks, and the Administrative Agent Additional Banks shall have received a certificate made, Syndicated Loans to that effect dated such date and executed by a Financial Officer the Company (in the case of the Borrower, and (iii) (x) upon Syndicated EurodollarTerm Benchmark Loans, with Interest Period(s) ending on the reasonable request date(s) of any Bank made at least five (5then outstanding Interest Period(s) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior Syndicated RFR Loans, with the same interest payment dates as the interest payment dates applicable to the effectiveness then outstanding Syndicated RFR Loans), and (notwithstanding the provisions of any Accession Agreement, any Loan Party Section 4.02 hereof requiring that qualifies as a “legal entity customer” under borrowings and prepayments be made ratably in accordance with the Beneficial Ownership Regulation principal amounts of the Syndicated Loans held by the Banks) the Company shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification prepaid Syndicated Loans held by the other Banks in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements amounts as may be agreed upon by the Borrower and the Administrative Agent to ensure necessary, so that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseLoans and prepayments, the Syndicated Loans (and their respective Commitments, after giving effect Interest Period(s) of Syndicated EurodollarTerm Benchmark Loan(s) and interest payment dates applicable to such increase, will be re-established, and the effectiveness of such increase Syndicated RFR Loans) shall be conditioned on held by the implementation Banks pro rata in accordance with the respective amounts of such arrangementstheir Commitments (as so increased). This Section 2.17 Promptly following any increase of Commitments pursuant to this Section, the Administrative Agent shall supersede any provisions in Section 2.13 or 10.01 provide notice thereof to each of the contraryBanks.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) Lenders), executed by a Responsible Officer of the Borrower Company and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankLender”), which may include any BankLender, cause Commitments to be made available by the Increasing Lenders (or cause the Commitments of the Increasing Banks Lenders to be increased (or cause increased, as the Increasing Banks to extend new Commitmentscase may be) in an amount not less than US$10,000,000 and in an aggregate amount that is an integral multiple of US$1,000,000 for each Increasing Bank (which shall not be less than $10,000,000) Lender set forth in such notice, provided provided, however, that (ia) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) the aggregate amount of all new Commitments and increases in existing Commitments becoming effective under pursuant to this paragraph during the term of this Agreement shall not in no event exceed $200,000,000 in the aggregateUS$500,000,000, (iiib) each Increasing BankLender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (ivc) each Increasing BankLender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement Accession Agreement substantially in a the form reasonably satisfactory to the Administrative Agent and the Borrower set forth in Exhibit G (an “Accession Agreement”). New Commitments and increases in Commitments pursuant to this Section shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17Section. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Lender is a party, such Increasing Bank Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank Lender hereunder. Notwithstanding the foregoing, no increase in the Total aggregate Commitments (or in the Commitment of any BankLender) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under this Section 3.01(a)(ii) through (v)unless, giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect certificate, dated as of the effective date of such date increase and executed by a Financial Officer the chief financial officer or the chief accounting officer of the BorrowerCompany, to the effect that the conditions set forth in clauses (b), (c) and (iiid) of Section 4.02 shall be satisfied (x) upon the reasonable request with all references in such clauses to a Borrowing being deemed to be references to such increase). Following any extension of a new Commitment or increase of a Lender’s Commitment pursuant to this Section 2.18, any Bank made at least five (5) days Loans outstanding prior to the effectiveness of any Accession Agreement, such extension or increase shall remain outstanding until the Borrower shall have provided to such Bankends of the respective Interest Periods applicable thereto, and such Bank shall then be reasonably satisfied with, the documentation and other information so requested in connection repaid or refinanced with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments new Loans made pursuant to this Section 2.17, to 2.01 ratably in accordance with the extent there are outstanding Advances, respective Commitments of the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryLenders.
Appears in 1 contract
Sources: Credit Agreement (DOVER Corp)
Increase in Commitments.
(a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $55,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender, and (vii) Section 5.07 will be adjusted by mutual consent of the Borrower and the Majority Lenders. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such Conformed Credit Agreement - Page 56 notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable to this paragraphthe Administrative Agent, (ii) all new Commitments any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunderAdministrative Agent, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in Conformed Credit Agreement - Page 57 this Agreement shall be and the other Loan Documents are true and correct in all material respects (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default shall have or Event of Default has occurred and be continuing is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or would result therefromopinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have received a certificate reasonably requested; and
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to that effect dated such date and executed by a Financial Officer Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Borrower, and Revolver Advances (iiithe “Initial Advances”) (x) upon the reasonable request of any Bank made at least five (5) days immediately prior to giving effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolver Advances (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Advances and of the types and for the Interest Period specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. The Borrower may Company may, at any time and from time to time, after the Closing Date by written notice to the Administrative Agent Agent, propose an increase in the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments hereunder (which shall promptly deliver each such proposed increase being a copy to the Banks“Commitment Increase”) executed either by having a Responsible Officer Lender increase its Commitment of the Borrower and one or more financial institutions applicable Class then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by having a Person which is not then a Lender become a party hereto as a Lender with a new Commitment of the applicable Class hereunder (each an “Assuming Lender”), which may include any Bankin each case, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the Administrative Agent (which approval shall not to be unreasonably withheld); provided that each Assuming Lender with a NAIC Tranche Commitment shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable, (ii) the Class of the Commitments which is being increased, (iii) the amount of the Commitment Increase and the portion thereof being committed to by each such Increasing Lender or Assuming Lender, (iv) the date on which such Commitment Increase is to be effective (a “Commitment Increase Date”) (which shall be a Business Day at least five Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date) and (ivv) each Increasing Bank, if not already a Bank hereunder, the Company’s election whether to increase the Foreign Currency Sublimit Dollar Amount as provided below. Each Commitment Increase shall become a party be subject to this Agreement by completing and delivering to the following additional conditions:
(i) unless the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyotherwise agrees, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph Assuming Lender as part of any Commitment Increase shall become effective unless be in a minimum amount of at least $25,000,000;
(i) unless the Administrative Agent otherwise agrees, each Commitment Increase shall have received documents consistent with those delivered under Section 3.01(a)(iibe in an amount of at least $25,000,000;
(ii) through (v), immediately after giving effect to such increaseany Commitment Increase, the total Commitments hereunder shall not exceed $4,500,000,000;
(iiiii) no Default has occurred and is continuing on the effective date of such increase, relevant Commitment Increase Date or shall result from any Commitment Increase; and
(iv) the representations and warranties of the Borrower and the Guarantors Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of such representations and no Default shall warranties qualified as to materiality, in all respects) on and as of the relevant Commitment Increase Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have occurred been made as of a specific date, as of such specific date). In connection with any Commitment Increase, the Company may, at its option, elect to ratably increase the Foreign Currency Sublimit Dollar Amount in proportion to the amount of such Commitment Increase (each such proposed increase being a “Foreign Currency Sublimit Increase”). Each Commitment Increase (and be continuing or would result the increase of the applicable Commitment of each Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable, resulting therefrom), and if elected by the Company, the corresponding Foreign Currency Sublimit Increase, shall become effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate of a Responsible Officer stating that the conditions with respect to such Commitment Increase under this Section have been satisfied and (b) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its Commitment (or an increase of its applicable Commitment, as applicable), duly executed by each such Lender and the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agent’s receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender, together with such certificate of such Responsible Officer, the Administrative Agent shall have received a certificate to that effect dated record the information contained in such date agreement in the Register and executed by a Financial Officer give prompt notice of the Borrower, relevant Commitment Increase and (iii) (x) upon if elected by the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession AgreementCompany, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17corresponding Foreign Currency Sublimit Increase, to the extent Company and the Lenders (including, if applicable, each Assuming Lender). On each Commitment Increase Date, if there are Loans of the applicable Class then outstanding, each applicable Borrower shall simultaneously (i) prepay in full the outstanding AdvancesLoans of such Class made to such Borrower immediately prior to giving effect to the relevant Commitment Increase in accordance with Section 2.08 and (ii) at such Borrower’s option in accordance with this Agreement, such Borrower may request to borrow new Loans of such Class from all the relevant Lenders (including, if applicable, any Assuming Lender) such that, after giving effect thereto, the parties hereto shall implement Loans of such arrangements as may be agreed upon Class are held ratably by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, relevant Lenders in accordance with their respective Commitments of such Class (after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangementsCommitment Increase). This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase any of its Commitments hereunder and any election to do so shall be in the sole discretion of such Lender.
Appears in 1 contract
Sources: Credit Agreement (American International Group Inc)
Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments be increased by an amount not less than $25,000,000 for any such increase; PROVIDED that after giving effect to any such increase the sum of the total Commitments and the commitments under the 364-Day Credit Agreement shall not exceed $1,000,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 Business Days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company's notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an "INCREASING LENDER") or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a "NON-INCREASING LENDER"). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing Bank”"AUGMENTING LENDER"), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new US Tranche Commitments) , Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, or increase their existing US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, in an aggregate amount for equal to the unsubscribed amount; PROVIDED that each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrowers and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence the Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(ivb) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments pursuant to this Section 2.10 (the "COMMITMENT INCREASE"), (i) the aggregate principal amount of the US Tranche Revolving Loans, Swiss Tranche Revolving Loans or Japanese Tranche Revolving Loans, as the case may be, outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing BankLender and each Augmenting Lender that shall have been a US Tranche Lender, if not already a Bank hereunderSwiss Tranche Lender or Japanese Tranche Lender, as the case may be, prior to the Commitment Increase shall become a party to this Agreement by completing and delivering pay to the Administrative Agent or another Agent designated by the Administrative Agent for such purpose in same day funds an amount equal to the difference between (A) the product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be (calculated after giving effect to the Commitment Increase), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be (calculated without giving effect to the Commitment Increase), multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a duly executed accession agreement in a form reasonably satisfactory Lender prior to the Commitment Increase shall pay to the Administrative Agent or another Agent designated by the Administrative Agent for such purpose in same day funds an amount equal to the product of (1) such Augmenting Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the Borrower Administrative Agent or other Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent or such other Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the applicable Borrowers shall be deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an “Accession Agreement”)aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.04, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the applicable Borrowers shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. New The deemed payments made pursuant to clause (i) above in respect of each Eurocurrency Loan or TIBOR Loan shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result.
(c) Increases and new Commitments and increases in Commitments created pursuant to this Section 2.10 shall become effective on the date specified in the applicable notices notice delivered by the Company pursuant to this Section 2.17. Upon the effectiveness first sentence of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the Total Commitments of any Class (or in the any Commitment of any BankLender) pursuant to this paragraph or addition of an Augmenting Lender shall become effective unless under this Section unless, (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement paragraphs (a) and (b) of Section 4.02 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer the chief financial officer of the BorrowerCompany, and (iiiii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to ensure that the proportion between corporate power and authority of the Banks’ outstanding Advances, applicable Borrowers to borrow hereunder after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Five Year Credit Agreement (Edwards Lifesciences Corp)
Increase in Commitments. The (i) Once per calendar year (or more frequently as permitted by Agent) Borrower may at any time and from time to timemay, by written notice to Agent, request that the Administrative Total Commitment Amount be increased by an amount not to exceed $100,000,000 in the aggregate for all such increases from the Closing Date until the last day of the Commitment Period, provided that (A) no Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase and (B) Borrower shall have delivered to Agent, together with such written notice, a copy of Borrower’s duly adopted corporate resolutions, in form and substance satisfactory to Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower as being true, correct, complete and in full force and effect. Upon receipt of any such request, Agent (which shall promptly deliver a copy of such request to the Banks) executed by a Responsible Officer of the each Lender. Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during request the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval amount of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no requested increase in the Total Commitments Commitment Amount (or which in each case shall be in a minimum amount of $25,000,000 and in such minimum increments in excess thereof as Agent shall permit) and the Commitment of any Bank) pursuant date on which such increase is requested to this paragraph shall become effective unless (i) which shall be not less than 10 Business Days nor more than 60 days after the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increaserequest and that, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall any event, must be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) 90 days prior to the effectiveness last day of the Commitment Period), and shall offer each Lender the opportunity to increase its Revolving Credit Commitment by its Commitment Percentage of the proposed increased amount. Each Lender shall, by notice to Borrower and Agent given not more than 10 days after the date of Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each such Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Accession Agreementsuch Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment and each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). If, on the 10th day after Agent shall have delivered notice as set forth above, the Borrower Increasing Lenders shall have provided agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Commitment Amount requested by Borrower, Borrower may arrange for one or more banks or other entities that are acceptable to Agent (each such BankPerson so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such Bank documentation as Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Lender with a Revolving Credit Commitment hereunder. Any increase in the Total Commitment Amount may be made in an amount that is less than the increase requested by Borrower if Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably satisfied withnecessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the documentation outstanding Revolving Loans (if any) are held by the Lenders with Revolving Credit Commitments in accordance with their new Commitment Percentages. This may be accomplished at the discretion of Agent: (w) by requiring the outstanding Loans to be prepaid with the proceeds of new Loans; (x) by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and Augmenting Lenders; (y) by permitting the Loans outstanding at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date time of any increase in the Commitments Total Commitment Amount pursuant to this Section 2.172.10(b) to remain outstanding until the last days of the respective Interest Periods therefor, to even though the extent there are outstanding Advances, Lenders would hold such Loans other than in accordance with their new Commitment Percentages; or (z) by any combination of the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryforegoing.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. (a) The Borrower Company may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banksapplicable Lenders) executed by a Responsible Officer of the Borrower Company and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankLender”), which may include any BankLender, cause new Global Tranche Commitments or US Tranche Commitments to be extended by the Increasing Lenders (or cause the existing Global Tranche Commitments or US Tranche Commitments of the Increasing Banks Lenders to be increased (or cause increased, as the Increasing Banks to extend new Commitmentscase may be) in an amount for each Increasing Bank Lender (which shall not be less than $10,000,000US$5,000,000) set forth in such notice, ; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all the new Commitments and increases in existing Commitments becoming effective under pursuant to this paragraph shall not be greater than US$500,000,000 in the aggregate during the term of this Agreement and shall not exceed $200,000,000 in the aggregatebe less than US$10,000,000 (or any portion of such US$500,000,000 aggregate amount remaining unused) for any such increase, (iiiii) each Increasing BankLender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent and each LC Issuer (which approval shall not be unreasonably withheld) and (iviii) each Increasing BankLender, if not already a Bank Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower Company (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17paragraph. Upon the effectiveness of any Accession Agreement to which any Increasing Bank Lender is a party, (i) such Increasing Bank Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank Lender hereunder and subject to all obligations of a Bank hereunderLender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Commitment or Commitments of such Increasing Lender as provided in such Accession Agreement. For the avoidance of doubt, it is understood and agreed that no Lender shall have any obligation whatsoever to agree to any increase in its Commitment.
(a) On the effective date (the “Increase Effective Date”) of any increase in the Commitments of any Tranche pursuant to paragraph (a) above (a “Commitment Increase”), (i) the aggregate principal amount of the Revolving Borrowings of such Tranche outstanding (the “Initial Borrowings”) immediately prior to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender that shall have had a Commitment under such Tranche prior to the Commitment Increase shall pay to the Administrative Agent in same day funds (in the applicable currencies), an amount equal to the difference between (A) the product of (1) such Lender’s applicable Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing (as hereinafter defined) and (B) the product of (1) such Lender’s applicable Tranche Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of each Initial Borrowing, (iii) each Increasing Lender that shall not have had a Commitment under such Tranche prior to the Commitment Increase shall pay to Administrative Agent in same day funds (in the applicable currencies) an amount equal to the product of (1) such Increasing Lender’s applicable Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the #100856141v12 Administrative Agent shall pay to each Lender (in the applicable currencies) the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s applicable Tranche Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of each Initial Borrowing and (B) the product of (1) such Lender’s applicable Tranche Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing, (v) after the effectiveness of the Commitment Increase, the applicable Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in amounts (in the currencies of the Initial Borrowings) equal to the amounts of the Initial Borrowings and of the Types and for the Interest Periods specified in a Revolving Borrowing Request delivered to the Administrative Agent in accordance with Section 2.04, (vi) each Lender shall be deemed to hold its applicable Tranche Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment Increase) and (vii) the Borrowers shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Initial Borrowings. The deemed payments made pursuant to clause (i) above shall be subject to compensation by the applicable Borrower pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
(b) Notwithstanding the foregoing, no increase in the Total any Commitments (or in the any Commitment of any BankLender) pursuant to this paragraph or addition of a new Lender shall become effective unless under this Section 2.22 unless, (i) on the Administrative Agent Increase Effective Date, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall have received documents consistent be satisfied (with those delivered under Section 3.01(a)(ii) through (v), giving effect all references in such paragraphs to a Credit Event being deemed to be references to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, Company; (ii) no reduction of the total Commitment shall have occurred prior to the Increase Effective Date; and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that shall have received (with sufficient copies for each of the proportion between Lenders) documents consistent with those delivered on the Banks’ outstanding Advances, Amendment Closing Date under clauses (b) and (c) of Section 4.02 after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. The Borrower may shall have the right at any time and from time to time, but in no event more than once in any consecutive twelve month period, to increase the aggregate Commitments in integral multiples of $10,000,000 but not to exceed $100,000,000 in the aggregate by written notice adding to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and this Agreement one or more financial institutions other Eligible Assignees (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any BankLender (with the consent of such Lender)) (each such Eligible Assignee, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice“Additional Lender”), provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to with the approval of the Administrative Agent (which approval shall not to be unreasonably withheld) ), each of which Additional Lenders shall have entered into an agreement in form and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party substance satisfactory to this Agreement by completing the Borrower and delivering to the Administrative Agent pursuant to which such Additional Lender shall undertake a duly executed accession agreement Commitment (if any such Additional Lender is a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder) which such Commitment shall be in an amount at least equal to (i) for each Additional Lender that is not a form reasonably satisfactory Lender, $10,000,000 or a larger integral multiple of $1,000,000 and (ii) for each Additional Lender that is a Lender, an amount equal to the Administrative Agent product of (A) such Lender’s proposed total increase in its Commitment and (B) such increase over the Borrower aggregate proposed increases of all the Lenders’ Commitments (but in no event shall such Lender’s Commitment be increased in an “Accession Agreement”amount greater than its proposal). New Commitments , and increases in Commitments shall become effective on upon the effectiveness of such agreement (the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon of the effectiveness of any Accession Agreement such agreement being hereinafter referred to which any Increasing Bank is as the “Increased Commitment Date”) such Additional Lender shall thereupon become a party, such Increasing Bank shall thereafter be deemed to be a party to “Lender” for all purposes of this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunderAgreement. Notwithstanding the foregoing, no the increase in the Total aggregate Commitments (or in the Commitment of any Bank) hereunder pursuant to this paragraph Section 2.05(c) shall become be effective unless only if:
(i) the Borrower shall have given the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect notice of any such increase at least three Business Days prior to any such increase, Increased Commitment Date;
(ii) on the effective date no Default or Event of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer as of the Borrower, and date of the notice referred to in the foregoing clause (i) or on the Increased Commitment Date;
(iii) (x) upon the reasonable request no Advances shall be outstanding hereunder and no Notice of any Bank made at least five (5) days prior to the effectiveness A Borrowing or Notice of any Accession Agreement, the Borrower B Borrowing shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Actbeen given, in each case at least three (3) Business Days prior to the effectiveness case, on and as of any Accession Agreement and such Increased Commitment Date;
(yiv) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation there shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date been no reduction of any increase in the Commitments pursuant to this Section 2.17, 2.05(a) hereof on or prior to any such Increased Commitment Date; and
(v) on the extent there are outstanding Advancesdate of the notice referred to in clause (i) above and on the Increased Commitment Date, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower ▇▇▇▇▇’▇ Rating is at or above Baa1 and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 Standard & Poor’s Rating is at or 10.01 to the contraryabove BBB+.
Appears in 1 contract
Sources: Credit Agreement (Mony Group Inc)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $75,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $45,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no Commitment Increase shall be effective until the Required Lenders shall have consented to such Commitment Increase in writing which consent may be withheld or granted in the sole discretion of the Required Lenders; provided that: (1) no consent to a Commitment Increase shall be construed to obligate any Lender to participate as a Lender in such Commitment Increase; and (2) in evaluating whether to consent to such Commitment Increase, the Required Lenders shall be permitted to consider any and all matters as the Required Lenders deem appropriate, and (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Domestic Business Days before executing a commitment with any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Domestic Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under the Administrative Agent’s Letter Agreement, which shall be paid in accordance with its terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or BB&T, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) an opinion or opinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested; and
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Advances and correct of the types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Advances and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Revolver Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, Apache shall have the right to cause from time to time, time an increase in the Commitments of the Lenders by written notice up to GBP175,000,000 in the aggregate (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are consented to by the Administrative Agent (which consent shall promptly deliver a copy to the Banksnot be unreasonably withheld or delayed) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions existing Lenders to increase their respective Commitments (any such financial institution referred to in this Section being called an each a “Increasing BankCI Lender”); provided, which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided however that (i) at the time of, and after giving effect to, the Commitment Increase, no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregateGBP1,075,000,000, (iii) each Increasing no Lender’s Commitment or Issuing Bank, if not already a Bank hereunder, ’s Letter of Credit Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s or such Issuing Bank’s, as applicable, prior written consent (which approval shall not consent may be unreasonably withheld) given or withheld in such Lender’s or such Issuing Bank’s sole and absolute discretion), (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, any Loans have been funded, then Borrower shall be obligated to pay any breakage fees or costs in connection with the representations reallocation of such outstanding Loans, and warranties (v) each CI Lender shall execute a Notice of Commitment Increase and deliver such executed notice to the Borrower Administrative Agent.
(b) Any Commitment Increase must be requested by written notice from Apache to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit G attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Administrative Agent) or on another date agreed to by the Administrative Agent and Apache (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by Borrower pursuant to Section 2.10, ratably in accordance with the respective principal amounts thereof, of the principal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) Borrower shall be true responsible to pay to each Lender any breakage fees or costs in connection with the reallocation of any outstanding Loans.
(d) Each Commitment Increase shall become effective on its Commitment Increase Effective Date and correct upon such effectiveness (i) the Administrative Agent shall record in its records the CI Lender’s information as provided in the Notice of Commitment Increase and pursuant to an Administrative Questionnaire in form satisfactory to the Administrative Agent that shall be executed and delivered by each CI Lender to the Administrative Agent on or before the Commitment Increase Effective Date, (ii) Schedule 2.1 hereof shall be amended and restated to set forth all material respects and no Default Lenders (including any CI Lenders) that will be Lenders hereunder after giving effect to such Commitment Increase (which shall have occurred and be continuing or would result therefrom, set forth in Annex I to the applicable Notice of Commitment Increase) and the Administrative Agent shall have received distribute to each Lender (including each CI Lender) a certificate to that effect dated copy of such date amended and executed by a Financial Officer of the Borrowerrestated Schedule 2.1, and (iii) (x) upon each CI Lender identified on the reasonable request Notice of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to Commitment Increase for such Bank, and such Bank Commitment Increase shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customerLender” for all purposes under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAgreement.
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right, without the consent of the Lenders or the Administrative Agent, to cause from time to time, by written notice to time an increase in the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer total amount of the Borrower and Commitments (a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if are not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) Lenders hereunder and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form that are reasonably satisfactory to the Administrative Agent and the Borrower (an each a “Accession AgreementCI Lender”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant ) or by allowing one or more existing Lenders to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyincrease their respective Commitments; provided, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rightshowever, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless that (i) the Administrative Agent no Event of Default shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increaseoccurred which is continuing, (ii) no such Commitment Increase shall cause the total amount of the Commitments to exceed U.S.$2,250,000,000, (iii) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute THE LENDERS UNDER THE APACHE CORPORATION 2006 FIVE-YEAR CREDIT FACILITY April 5, 2007 Page 3 discretion) and (iv) if, on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.21 attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing such notice (not less than five (5) Business Days after receipt by the Administrative Agent) or would result therefrom, and on another date agreed to by the Administrative Agent shall have received a certificate to that effect dated and the Borrower (such date and executed referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a Financial Officer prepayment by the Borrower pursuant to Section 2.10, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements aggregate principal amount of Loans as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, a result of borrowings made after giving effect to the Commitment Increase on such increaseCommitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the Commitment Increase that does not increase its respective Commitment as a result of the Commitment Increase and whose relative percentage of the total amount of the Commitments shall be reduced as a result of such Commitment Increase; and (3) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date THE LENDERS UNDER THE APACHE CORPORATION 2006 FIVE-YEAR CREDIT FACILITY April 5, and their respective Commitments, 2007 Page 4 (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase).
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $10,000,000, (ii) immediately after giving effect to any Commitment Increase, the aggregate Revolver Commitments shall not exceed $800,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V and (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable under any letter agreement with the Administrative Agent or under any other letter agreement with a Lender acting as an arranger approved by the Administrative Agent, which shall be paid in accordance with their terms, any fees paid by the Borrower for a Commitment Increase to this paragraphan Increasing Lender, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during an Additional Lender, the term of this Agreement shall not exceed $200,000,000 in the aggregateAdministrative Agent or any Lender, (iii) each Increasing Bank, if not already a Bank hereunderas arranger, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Domestic Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Administrative Agent and each other Lender committing to the Commitment Increase, all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents consistent with those delivered or items as the Administrative Agent, the Additional Lender, Increasing Lender or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) through a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents are true and correct (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) such other documents or items that the Administrative Agent, any Additional Lender, any Increasing Lender or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Revolver Advances (the “Initial Advances”) immediately prior to giving effect to the Commitment Increase shall be true deemed to be repaid, (ii) immediately after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings of Revolver Advances (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Advances and correct of the types and for the Interest Periods specified in all material respects a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and no Default shall have occurred and be continuing or would result therefrom(z) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, and (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a certificate pay to that effect dated each Lender the portion of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior funds equal to the effectiveness of any Accession Agreementdifference, the Borrower shall have provided to such Bankif positive, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and between (y) at least three such Lender’s pro rata percentage (3) Business Days prior calculated without giving effect to the effectiveness Commitment Increase) of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to Initial Advances and (z) such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, and (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments, Revolver Commitments (calculated after giving effect to such increasethe Commitment Increase), will be re-established(vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and the effectiveness of such increase (vii) Schedule 2.01 shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may at any time and Company shall have the right from time to time, by written notice to without the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer consent of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause Banks but with the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the prior written approval of the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed), to effect an increase in the aggregate amount of the Commitments of a Class by adding as a Bank with a new Commitment of such Class any Person which is not then a Bank (each an "Additional Bank") and and/or by having a Bank increase its Commitments of such Class hereunder (iv) each an "Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower ").
(an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. b) Notwithstanding the foregoing, no increase in the Total aggregate Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.10 shall become be effective unless unless:
(i) each Additional Bank shall have entered into an agreement in form and substance satisfactory to the Company and the Administrative Agent pursuant to which such Additional Bank shall undertake a Commitment of the relevant Class (and upon the effectiveness thereof such Additional Bank shall be a "Bank" for all purposes of this Agreement) and each Increasing Bank shall have received documents consistent with those delivered under Section 3.01(a)(iientered into an agreement in form and substance satisfactory to the Company and the Administrative Agent pursuant to which such Increasing Bank shall agree to increase its Commitment of a Class (and upon the effectiveness thereof such Bank's Commitment of such Class shall be so increased);
(ii) through the Company shall have given the Administrative Agent notice of such increase at least three Business Days prior to the proposed effective date for such increase (vthe "Commitment Increase Date"), ;
(iii) after giving effect to such increase, the aggregate Commitments shall not exceed $2,000,000,000;
(iiiv) no Bank's Commitment shall be increased without the prior express written consent of such Bank;
(v) on the effective date relevant Commitment Increase Date, no Syndicated Loans or Letters of Credit of the relevant Class shall be outstanding hereunder and no notice of borrowing of Syndicated Loans or request for the issuance of a Letter of Credit of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement Class hereunder shall be true and correct in all material respects and pending;
(vi) no Default shall have occurred and be continuing on and as of the date of the relevant notice referred to in clause (ii) above or would result therefrom, on the relevant Commitment Increase Date; and
(vii) each Additional Bank and the Administrative Agent Increasing Bank shall have received a certificate to that effect dated such date and executed by a Financial Officer evidence of the Borrower, corporate authority of the Borrowers and (iii) (x) upon the reasonable request opinions of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and counsel as such Bank shall be may reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryrequest.
Appears in 1 contract
Increase in Commitments. The Borrower may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,0005,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 85,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, increase and (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromcontinuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may at any time and from time to timemay, by written notice to the Administrative Agent (which shall promptly deliver a copy from time to time, request Incremental Term Loan Commitments in amounts not to exceed the Banks) executed by a Responsible Officer of the Borrower and Incremental Term Loan Amount from one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”)Incremental Term Lenders, which may include any Bank, cause the Commitments existing Lender (each of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth entitled to agree or decline to participate in such notice, its sole discretion); provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankIncremental Term Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Agent) and (iviii) whether such Incremental Term Loan Commitments are to be Commitments to make Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each Increasing Bankof which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the average life to maturity of any Other Term Loans shall be no shorter than the average life to maturity of the Term Loans; and provided further that, if the initial yield on such Other Term Loans (as determined by the Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from Holdings, the Borrower or any Subsidiary (the amount of such discount or upfront fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for LIBO Rate Term Loans of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Rate then in effect for such LIBO Rate Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such LIBO Rate Term Loans of such Class on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) one-quarter of the amount of OID initially paid in respect of the Term Loans of such Class (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate then in effect for each such affected Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The other terms of the Incremental Term Loans and the Incremental Loan Assumption Agreement, to the extent not already a Bank consistent with the terms applicable to the Term Loans hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form otherwise be reasonably satisfactory to the Administrative Agent and and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower (an “Accession or the Restricted Subsidiaries or are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement”). New Commitments and increases in Commitments shall become effective , mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date specified in of such Incremental Term Loan Assumption Agreement. The Agent shall promptly notify each Lender as to the applicable notices delivered pursuant to this Section 2.17effectiveness of each Incremental Term Loan Assumption Agreement. Upon Each of the parties hereto hereby agrees that, upon the effectiveness of any Accession Incremental Term Loan Assumption Agreement, this Agreement shall be amended to which any Increasing Bank is a party, the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment evidenced thereby as provided for in Section 9.02. Any such Increasing Bank shall thereafter deemed amendment may be deemed memorialized in writing by the Agent with the Borrower’s consent (not to be a party unreasonably withheld) and furnished to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. the other parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Commitments (or in the Incremental Term Loan Commitment of any Bank) pursuant to this paragraph shall become effective under this Section 2.20 unless (i) on the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v)date of such effectiveness, at the time of and immediately after giving effect to such increase, (ii) on Incremental Term Loan Commitment and the effective date Incremental Term Loans to be made thereunder and the application of such increasethe proceeds therefrom, the representations and warranties of the Borrower and the Guarantors conditions set forth in this Agreement clauses (i)(i) and (i)(ii) of Section 4.01 shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior Consolidated Secured Debt Ratio would be no greater than 4.00 to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, 1.00 after giving effect to such increaseIncremental Term Loan Commitment and the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), and their respective Commitmentswhen originally made, after giving effect to such increase, will be re-establishedare included in each Borrowing of outstanding Term Loans on a pro rata basis, and the effectiveness Borrower agrees that Section 2.15 shall apply to any conversion of LIBO Rate Term Loans to ABR Term Loans reasonably required by the Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization percentages under Section 2.08(a) shall be deemed to apply to the aggregate principal amount of such increase shall be conditioned Incremental Term Loans on the implementation of date such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryLoans are made.
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Increase in Commitments. The Borrower may at (a) At any time prior to the Facility Termination Date, Borrower shall have the ability, in consultation with the Agent and from time to time, by through written notice to the Administrative Agent Agent, substantially in the form of Exhibit D (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing BankIncrease Notice”), which may include any Bankto request increases in the Aggregate Commitment (each, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a “Requested Commitment Increase”); provided that (i) no Bank Lender shall have any obligation to increase its participate in any Requested Commitment pursuant to this paragraphIncrease, (ii) the aggregate principal amount of all new Commitments and such increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate10,000,000, (iii) each Increasing Banksuch Requested Commitment Increase shall be in a minimum principal amount of $10,000,000 or, if not already a Bank hereunderless, shall be subject the maximum remaining amount permitted pursuant to the approval of the Administrative Agent clause (which approval shall not be unreasonably withheldii) above, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (Default or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Unmatured Default shall have occurred and be continuing or would result therefrom, and from the Administrative proposed Requested Commitment Increase.
(b) The Agent shall have received a certificate to that effect dated promptly give notice of such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior Requested Commitment Increase to the effectiveness of any Accession Agreement, Lenders. Each Lender shall notify the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three Agent within ten (310) Business Days prior to the effectiveness (or such longer period of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as time which may be agreed upon by the Agent and Borrower and communicated to the Administrative Lenders) from the date of delivery of such notice to the Lenders whether or not it offers to increase its Commitment and, if so, by what amount. Any Lender not responding within such time period shall be deemed to have declined to offer to increase its Commitment. The Agent shall notify Borrower of the Lenders’ responses to ensure that each request made hereunder. Borrower shall have the proportion between right in its sole discretion to accept or reject in whole or in part any offered Commitment increase or at its own expense to solicit a Commitment from any third party financial institution reasonably acceptable to the Banks’ outstanding AdvancesAgent. Any such financial institution (if not already a Lender hereunder) shall become a party to this Agreement, after giving effect as a Lender pursuant to such increasea joinder agreement in form and substance reasonably satisfactory to the Agent and Borrower.
(c) Upon the completion of each Requested Commitment Increase, and their respective Commitments, after giving effect (i) entries in the accounts maintained pursuant to such increase, Section 2.15 will be re-established, revised to reflect the revised Commitments and Pro Rata Shares of each of the effectiveness Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above) and (ii) the outstanding Revolving Loans will be reallocated on the effective date of such increase among the Lenders in accordance with their revised Pro Rata Shares and the Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above) agree to make all payments and adjustments necessary to effect such reallocation and Borrower shall be conditioned on the implementation of pay any and all costs required in connection with such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryreallocation as if such reallocation were a prepayment.
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Increase in Commitments. (a) The Borrower may at any time and from time to timeCompany may, by written notice to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer each of the Borrower Lenders), request that the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments be increased by an amount not less than $25,000,000 for any such increase; provided that after giving effect to any such increase the sum of the total Commitments shall not exceed $750,000,000. Such notice shall set forth the amount of the requested increase in the total US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, and the date on which such increase is requested to become effective (which shall be not less than 30 Business Days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Commitment by its US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the case may be, of the proposed increased amount. Each Lender shall, by notice to the Company and the Administrative Agent given not more than 10 Business Days after the date of the Company's notice, either agree to increase its applicable Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender") or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being a "Non-Increasing Lender"). In the event that, on the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this Section being called an “Increasing Bank”"Augmenting Lender"), which may include any BankLender, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new US Tranche Commitments) , Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, or increase their existing US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, in an aggregate amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, equal to the unsubscribed amount; provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing BankAugmenting Lender, if not already a Bank Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) the Borrowers and each Increasing Bank, if not already a Bank hereunder, Augmenting Lender shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, execute all such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) documentation as the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect reasonably specify to such increase, (ii) on evidence the effective date Commitment of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies Augmenting Lender and/or its status as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan PartyLender hereunder. On the effective date of any Any increase in the total US Tranche Commitments, Swiss Tranche Commitments pursuant to this Section 2.17or Japanese Tranche Commitments, to as the extent there are outstanding Advancescase may be, the parties hereto shall implement such arrangements as may be agreed upon made in an amount which is less than the increase requested by the Borrower and Company if the Administrative Agent Company is unable to ensure that the proportion between the Banks’ outstanding Advancesarrange for, after giving effect or chooses not to such increasearrange for, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryAugmenting Lenders.
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Increase in Commitments. The Borrower may at any time and from time to timetime add additional financial institutions hereunder as Syndicated Lenders or, by written notice with the consent of a Syndicated Lender, increase its Syndicated Tranche Commitment, and in each case, thereby increase the Total Commitment provided that at the time of any such addition:
(i) no Default or Event of Default has occurred and is continuing or would reasonably be expected to result therefrom;
(ii) all increases to the Administrative Syndicated Tranche as a result of the application of this Section 2.1(c) or otherwise, shall not at any time exceed Cdn.$250,000,000;
(iii) the Agent and each Fronting Lender has consented to such financial institution becoming a Syndicated Lender or, in the case of an existing Syndicated Lender, increasing its Syndicated Tranche Commitment, such consent not to be unreasonably withheld;
(which iv) the Syndicated Tranche Commitment of a new financial institution being added as a Lender pursuant to this Section 2.1(c) shall promptly deliver be no less than Cdn.$10,000,000;
(v) if, in connection with any such increase a copy commitment or similar fee is paid to any new Lender based on its new Syndicated Tranche Commitment (the “new money fee”), then the Borrower will also pay a corresponding fee equal to the Bankssame number of bps to the then existing Lenders based on their respective then existing Syndicated Tranche Commitments to the extent such a fee was not already paid on or after the Effective Date;
(vi) executed concurrently with the addition of a financial institution as an additional Syndicated Lender or the increase of a Lender’s Syndicated Tranche Commitment, such financial institution or Syndicated Lender, as the case may be, shall purchase from each other Syndicated Lender, such portion of the Outstandings under the Credit Facility owed to each Syndicated Lender as is necessary to ensure that the Outstandings under the Syndicated Tranche owed to all Syndicated Lenders and including therein such additional financial institution and the increased Syndicated Tranche Commitment of any Syndicated Lender, are in accordance with the Applicable Percentage of all such Syndicated Lenders (including any new financial institution and the increased Syndicated Tranche Commitment of any Syndicated Lender) and such financial institution shall execute such documentation as is required by the Agent, acting reasonably, to novate such financial institution as a Responsible Officer Syndicated Lender hereunder; provided that with respect to any portion of such Outstandings which are outstanding by way of Bankers’ Acceptance or LIBO Rate Loans, the new financial institution or such Syndicated Lender shall provide an indemnity to the other Syndicated Lenders (provided that no such indemnity may exceed two months in duration unless agreed to by all of the affected Syndicated Lenders) in order to ensure such Bankers’ Acceptances and LIBO Rate Loans are outstanding in accordance with the new Applicable Percentages of all Syndicated Lenders; and
(vii) the Borrower has provided to the Agent a certified copy of a directors’ resolution of the Borrower and one or more financial institutions (each other Obligor authorizing any such financial institution referred to increase in this Section being called an “Increasing Bank”), the Syndicated Tranche Commitments (which may include any Bankbe the original directors’ resolutions authorizing the Credit Facility hereunder) together with a legal opinion from Borrower’s Counsel with respect thereto in substantially the same form, cause mutatis mutandis, as the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices opinion delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v3.1(e), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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Increase in Commitments. The Borrower may at any time and (i) ▇▇▇▇▇▇▇▇ shall have the option, without the consent of the Lenders, from time to time, by written notice time to the Administrative Agent (which shall promptly deliver a copy to the Banks) executed by a Responsible Officer of the Borrower and cause one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing the Aggregate Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregateby adding, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the prior approval of the Administrative Agent (which such approval shall not to be unreasonably withheld) and (iv) each Increasing Bank), if not already a Bank hereunder, shall become a party to this Agreement one or more financial institutions as Revolving Lenders (collectively, the “New Lenders”) or by completing allowing one or more Revolving Lenders to increase their respective Commitments; provided however that: (A) immediately prior to and delivering immediately after giving effect to the increase, no Event of Default shall have occurred hereunder and be continuing, (B) no such increase shall cause the Aggregate Commitments to exceed $4,250,000,000, (C) no Lender’s Commitment shall be increased without such Lender’s consent, (D) such increase shall not result in the increase of any Borrower Sublimit and (E) such increase shall be evidenced by a commitment increase agreement in form and substance reasonably acceptable to the Administrative Agent and executed by ▇▇▇▇▇▇▇▇, the Administrative Agent, the New Lenders, if any, Lenders increasing their Commitments, if any, and (if any Lender increases its Commitments or is a duly executed accession New Lender) the Issuing Banks, and which shall indicate the amount and allocation of such increase in the Aggregate Commitments and the effective date of such increase (the “Increase Effective Date”). Each financial institution that becomes a New Lender pursuant to this Section by the execution and delivery to the Administrative Agent of the applicable commitment increase agreement shall be a “Revolving Lender” and a “Lender” for all purposes under this Agreement on the applicable Increase Effective Date. The Borrowers shall borrow and prepay Loans on each Increase Effective Date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Loans of each Revolving Lender ratable with such Lender’s revised Applicable Percentage after giving effect to any nonratable increase in the Aggregate Commitments under this Section.
(ii) As a condition precedent to each increase pursuant to Section 2.01(c)(i) above, ▇▇▇▇▇▇▇▇ shall deliver to the Administrative Agent, to the extent requested by the Administrative Agent, the following in form and substance reasonably satisfactory to the Administrative Agent and Agent:
(A) a certificate dated as of the Borrower (an “Accession Agreement”). New Commitments and increases Increase Effective Date, signed by a Responsible Officer of ▇▇▇▇▇▇▇▇ certifying that each of the conditions to such increase set forth in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank2.01(c) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent occurred and been complied with those delivered under Section 3.01(a)(ii) through (v)and that, before and after giving effect to such increase, (ii1) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth (other than Added L/C Representations) contained in this Agreement shall be and the other Loan Documents are true and correct in all material respects on and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer as of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Increase Effective Date after giving effect to such increase, except to the extent that such representations and their respective Commitmentswarranties specifically refer to an earlier date, after giving effect in which case they were true and correct in all material respects as of such earlier date, and (2) no Event of Default exists and is continuing;
(B) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer of ▇▇▇▇▇▇▇▇ as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of such Responsible Officer thereof authorized to act as a Responsible Officer in connection with such increase agreement, and such documents and certifications as the Administrative Agent may reasonably require to evidence that ▇▇▇▇▇▇▇▇ is validly existing and in good standing in its jurisdiction of organization; and
(C) a favorable customary opinion of counsel to ▇▇▇▇▇▇▇▇, relating to such increaseincrease agreement, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 addressed to the contraryAdministrative Agent and each Lender if requested by the Administrative Agent or such Lenders.
(iii) Any Borrower shall have the option, by agreement with any Lender to (A) after consultation with the Administrative Agent, cause such Lender to become or cease to be an Issuing Bank under this Agreement and (B) increase or decrease the Letter of Credit Commitment of any Lender as an Issuing Bank.
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Increase in Commitments. The Borrower may at (a) At any time and from time to timeafter the Closing Date, the Borrower may, by written notice to the Administrative Agent, request that the Total Commitment be increased by an amount not to exceed $50,000,000 in the aggregate for all such increases from the Closing Date until the Maturity Date, provided that no Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase. The Administrative Agent (which shall promptly deliver a copy of such request to the Banks) executed by a Responsible Officer of the each Lender. The Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticerequest the amount of the requested increase in the Total Commitment (which shall be in minimum increments of $10,000,000 and a minimum amount of $10,000,000) and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and that, provided in any event, must be at least 60 days prior to the Maturity Date). The Borrower may arrange for one or more banks or other entities that are Eligible Assignees to provide a Commitment hereunder pursuant to this Section 3.2(a) (ieach such Person so agreeing being an “ Augmenting Lender ”) no Bank shall have any obligation and/or the Borrower may offer to each Lender the opportunity to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval by its Percentage of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bankproposed increased amount. Each Lender shall, if not already a Bank hereunder, shall become a party by notice to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each such Lender so agreeing being an “ Increasing Lender ”) or decline to increase its Commitment (and any such Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment and each Lender so declining or being deemed to have declined being a “ Non-Increasing Lender ”). Each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender with a Commitment hereunder. Any increase in the Total Commitment may be made in an amount that is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to any increase in the Total Commitment pursuant to this Section 3.2(b), the outstanding Loans (if any) are held by the Lenders with requiring the outstanding Loans to be prepaid with the proceeds of new Borrowings; (x) by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the Borrowings outstanding at the time of any increase in the Total Commitment pursuant to this Section 3.2(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such increase, and Borrowings other than in accordance with their respective Commitments, after giving effect to such increase, will be re-established, and new Percentages; or (z) by any combination of the effectiveness of such increase foregoing. Any prepayment or assignment described in this paragraph (ii) shall be conditioned on subject to Section 2.7 hereof but otherwise without premium or penalty. In addition, in connection with any increase in the implementation of such arrangements. This Total Commitment pursuant to this Section 2.17 shall supersede the Administrative Agent may, in consultation with the Borrower, appoint any provisions in Section 2.13 Lender as a Syndication Agent, Documentation Agent, Co-Agent or 10.01 to the contraryother similar title.
Appears in 1 contract
Sources: Credit Agreement
Increase in Commitments. The (a) At any time on or before March 31, 2013, Borrower may at any time and from time to time, by written notice to the Administrative Agent (which shall promptly deliver a copy and without the consent of the other Lenders hereunder request increases to the Banks) executed by a Responsible Officer of the Borrower and one or more financial institutions existing Commitments (any such financial institution referred to in this Section being called increase, an “Increasing BankIncremental Commitment”), which may include any Bank, cause . Each Incremental Commitment shall be in a minimum amount of at least $5.0 million and the aggregate amount of all Incremental Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in 20.0 million. Such notice shall specify the aggregatedate (an “Increased Amount Date”) on which Borrower proposes that the Incremental Commitments be made available, (iii) each Increasing Bank, if not already a Bank hereunder, which shall be subject to a date not less than 5 Business Days after the approval of the Administrative Agent (date on which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering such notice is delivered to the Administrative Agent, and the amount of the Incremental Commitments. The Administrative Agent a duly executed accession agreement shall notify Borrower in a form writing of the identity of each Lender or other financial institution reasonably satisfactory acceptable to the Administrative Agent and the Borrower (each, an “Accession AgreementIncremental Lender”)) to whom the Incremental Commitments have been allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. New Commitments and increases in Such Incremental Commitments shall become effective on as of such Increased Amount Date; provided that (1) such Incremental Commitment will constitute permitted debt and the date specified liens securing the same will constitute permitted liens, in each case, under the Senior Notes Indenture, the Senior Secured Notes Indenture, and the Senior Secured Notes Security Agreement, (2) no Default or Event of Default has occurred and is continuing or would result after giving effect to the making of such Incremental Commitments and Loans or the application of the proceeds therefrom, and the chief financial officer of the Borrower shall have delivered a certificate, in form and substance satisfactory to Administrative Agent, with respect to items (1) and (2) herein, and (3) such increase in the applicable notices delivered pursuant Commitments shall be evidenced by one or more joinder agreements (the “Increase Joinder”) executed by Borrower, the Administrative Agent and each Lender making such Incremental Commitment, in form and substance satisfactory to this Section 2.17each of them. Upon The Increase Joinder may, without the effectiveness consent of any Accession Agreement to which any Increasing Bank is a partyother Lenders, effect such Increasing Bank shall thereafter be deemed to be a party amendments to this Agreement and shall the other Loan Documents as may be entitled to all rightsnecessary or appropriate, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment opinion of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have deliveredAgent, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On effect the effective date provisions of any increase in the Commitments pursuant to this Section 2.17, and each shall be recorded in the register, each of which shall be subject to the extent there requirements set forth in Section 2.14(e). All terms and conditions of any Loans or other Obligations relating to Incremental Commitments shall be on the same terms and conditions as those applicable to Commitments, Loans and other Obligations under this Agreement. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Loans shall be deemed, unless the context otherwise requires, to include references to Loans made pursuant to Incremental Commitments made pursuant to this Agreement.
(b) On any Increased Amount Date on which Incremental Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Advances, the parties hereto shall implement Loans and participations in Letters of Credit outstanding on such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure Increased Amount Date that the proportion between the Banks’ outstanding Advanceswill result in, after giving effect to all such increaseassignments and purchases, such Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their respective Commitments, Commitments after giving effect to the addition of such increaseIncremental Commitments to the Commitments, will (ii) each Incremental Commitment shall be re-establisheddeemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and have the same terms as any existing Loan and (iii) each Incremental Lender shall become a Lender with respect to the Commitments and all matters relating thereto. Borrower shall make any payments required pursuant to Section 2.12 in connection with any adjustment of Loans pursuant to this Section 2.17(b). Assignments made to effect this Section 2.17(b) shall be made in accordance with Section 11.04.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryIncremental Lenders.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $55,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender, and (vii) Section 5.07 will be adjusted by mutual consent of the Borrower and the Majority Lenders. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable to this paragraphthe Administrative Agent, (ii) all new Commitments any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunderAdministrative Agent, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession Agreement to aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents are true and correct in all material respects (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default shall have or Event of Default has occurred and be continuing is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or would result therefromopinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have received a certificate reasonably requested; and
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to that effect dated such date and executed by a Financial Officer Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Borrower, and Revolver Advances (iiithe “Initial Advances”) (x) upon the reasonable request of any Bank made at least five (5) days immediately prior to giving effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolver Advances (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Advances and of the types and for the Interest Period specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right at any time and from time to time, by written notice time after the Closing Date and prior to the Administrative Agent date that is thirty (which shall promptly deliver a copy 30) days prior to the Banks) executed Facility Termination Date to increase the Aggregate Commitment (each such proposed increase being a “Commitment Increase”), either by having a Responsible Officer of the Borrower and one or more financial institutions Lender increase its Commitment then in effect (any such financial institution referred to in this Section being called each an “Increasing BankLender”) or by adding as a Lender with a new Commitment hereunder a Person which is not then a Lender (each an “Assuming Lender”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to case with the approval of the Administrative Agent Agent, each LC Issuer and the Swingline Lender (which such approval shall not to be unreasonably withheld), which notice shall specify the name of each Increasing Lender and/or Assuming Lender, as applicable, the amount of the Commitment Increase and the portion thereof being assumed by each such Increasing Lender or Assuming Lender, and the date on which such increase is to be effective (the “Commitment Increase Date”), which shall be a Business Day at least three (3) Business Days after delivery of such notice; provided that no Lender shall have any obligation hereunder to become an Increasing Lender and any election to do so shall be in the sole discretion of each Lender; provided further that: (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or a higher integral multiple of 12640621v 1 24740.0002 44 $1,000,000; (ii) immediately after giving effect to any Commitment Increase, the Aggregate Commitment shall not exceed $450,000,000 and the aggregate amount of all Commitment Increases shall not exceed $150,000,000; (iii) the sum of the increases in Commitments of the Increasing Lenders and the new Commitments of the Assuming Lenders shall not exceed the requested Commitment Increase; (iv) no Default or Unmatured Default shall have occurred and be continuing on the applicable Commitment Increase Date or shall result from any Commitment Increase; and (v) the representations and warranties contained in Article 5 (other than in Section 5.5) shall be true on and as of the Commitment Increase Date as if made on and as of such date (or, if any such representation and warranty is expressly stated to have been made as of a specified date, as of such specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each Increasing BankLender and/or the new Commitment of each Assuming Lender, if not already a Bank hereunderas applicable, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments resulting therefrom) shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness as of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date; provided that: (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect on or prior to 10:00 a.m. on such Commitment Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions to such increase, Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the resolutions adopted by the Borrower approving or consenting to such Commitment Increase; (ii) on the effective date of such increasewith respect to each Assuming Lender, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerreceived, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days on or prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to 10:00 a.m. on such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requestsCommitment Increase Date, a Beneficial Ownership Certification in relation to such Loan Party. On Joinder Agreement among the effective date of any increase in the Commitments pursuant to this Section 2.17Assuming Lender, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent; and (iii) each Increasing Lender shall have delivered to the Administrative Agent, on or prior to 10:00 a.m. on such Commitment Increase Date, confirmation in writing satisfactory to the Administrative Agent as to ensure that its increased Commitment, with a copy of such confirmation to the proportion between Borrower.
(c) On each Commitment Increase Date upon such time as the Banks’ applicable conditions set forth in Sections 2.20(a) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the then outstanding AdvancesAdvances (if any) in full prior to giving effect to such Commitment Increase, (ii) if the Borrower shall so request, request new Advances from the Lenders (including any Assuming Lender) in an aggregate amount at least equal to such prepayment, so that, after giving effect thereto, the Advances are held ratably by the Lenders in accordance with their respective Commitments (after giving effect to such increase, Commitment Increase) and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 (iii) pay to the contraryLenders any funding indemnification amounts required by Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Increase in Commitments. The (a) Subject to the terms and conditions set forth herein, the Borrower may at any time and shall have the right, without the consent of the Lenders or the Global Administrative Agent, to cause from time to time, time an increase in the total amount of the Commitments (a “Commitment Increase”) by written notice adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Global Administrative Agent (which shall promptly deliver each a copy to the Banks“CI Lender”) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions (any such financial institution referred existing Lenders to in this Section being called an “Increasing Bank”)increase their respective Commitments; provided, which may include any Bankhowever, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred which is continuing, (ii) all new no such Commitment Increase shall cause the total amount of the Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not to exceed $200,000,000 in the aggregateU.S.$700,000,000, (iii) each Increasing Bank, if not already a Bank hereunder, no Lender’s Commitment shall be subject to the approval of the Administrative Agent increased without such Lender’s prior written consent (which approval shall not consent may be unreasonably withheldgiven or withheld in such Lender’s sole and absolute discretion) and (iv) each Increasing Bankif, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of any Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs in connection with the reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from the Borrower to the Global Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.21 attached hereto. Once the Notice of Commitment Increase is fully-executed, such notice and such Commitment Increase shall be effective on the Guarantors proposed effective date set forth in such notice (not less than five (5) Business Days after receipt by the Global Administrative Agent) or on another date agreed to by the Global Administrative Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Global Administrative THE COMBINED LENDERS UNDER THE APACHE CORPORATION GLOBAL CREDIT FACILITY April 5, 2007 Page 4 Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrower pursuant to this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefromon such Commitment Increase Effective Date, and (ii) the Global Administrative Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall have received constitute a certificate prepayment by the Borrower pursuant to that effect dated such date and executed by a Financial Officer Section 2.10, ratably in accordance with the respective principal amounts thereof, of the Borrowerprincipal amounts of all then outstanding Loans of such Reducing Percentage Lender, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided be responsible to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested pay to each Lender any breakage fees or costs in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitationthe reallocation of any outstanding Loans.
(d) For purposes of this Section, the PATRIOT Actfollowing defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the total amount of the Commitments after giving effect to the Commitment Increase, in each case at least three (3) Business Days times the aggregate principal amount of the outstanding Loans immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements aggregate principal amount of Loans as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, a result of borrowings made after giving effect to the Commitment Increase on such increase, Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to the Commitment Increase that does not increase its respective Commitment as a result of the Commitment Increase and their respective Commitments, whose relative percentage of the total amount of the Commitments shall be reduced as a result of such Commitment Increase; and (3) “Reduction Amount” means the amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase).
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Increase in Commitments. The (a) No more than two times after the Closing Date but prior to the Termination Date, the Borrower may shall have the right, at any time and from time to time, by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000 or an integral multiple of $2,500,000 in excess thereof, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Commitments shall not exceed $75,000,000 and (z) the aggregate of all Commitment Increases effected after the Closing Date shall not exceed $25,000,000, and (iii) no Bank existing Lender shall have any obligation be obligated to increase its Commitment pursuant as a result of any request for a Commitment Increase by the Borrower unless it agrees in its sole discretion to this paragraph, do so.
(iib) all new Commitments and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, Each Additional Lender must qualify as an Eligible Assignee (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of which by the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) and (iv) the Borrower and each Increasing Bank, if not already Additional Lender shall execute a Bank hereunder, shall become a party to this Lender Joinder Agreement by completing and delivering to together with all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrower may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment of such Additional Lender and its status as a Lender hereunder.
(c) If the aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (an the “Accession Agreement”). New Commitments and increases in Commitments Commitment Increase Date,” which shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Termination 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 Commitment Increase Date. The Administrative Agent is hereby authorized, on behalf of the Lenders, to enter into any amendments to this Agreement and the other Credit Documents as the Administrative Agent shall be entitled reasonably deem appropriate to all rights, benefits and privileges accorded a Bank hereunder and subject effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 2.20 to all obligations of a Bank hereunder. Notwithstanding the foregoingcontrary, no increase in the Total aggregate Commitments (or in the Commitment of any Bank) pursuant to this paragraph Section 2.20 shall become be effective unless unless:
(i) the The Administrative Agent shall have received documents consistent the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Lender, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Lender, a duly executed Lender Joinder Agreement together with those delivered all other documentation required by the Administrative Agent and the Borrower pursuant to Section 2.20(b);
(B) an instrument, duly executed by the Borrower, acknowledging and reaffirming its obligations under Section 3.01(a)(iithis Agreement and the other Credit Documents to which it is a party;
(C) through a certificate of the secretary or an assistant secretary of the Borrower, certifying to and attaching the resolutions adopted by the board of directors (v), giving effect or similar governing body) of the Borrower approving or consenting to such increaseCommitment Increase;
(D) a certificate of an Authorized Officer of the Borrower, certifying that (iiy) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Credit Documents are true and correct in all material respects respects, both immediately before and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that after giving effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of Commitment Increase and any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested Loans issued in connection with applicable “know your customer” therewith (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Actcorrect in all material respects, in each case at least three (3) Business Days prior to the effectiveness as of any Accession Agreement such date), and (yz) at least three (3) Business Days prior to the effectiveness no Default or Event of any Accession AgreementDefault has occurred and is continuing, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower both immediately before and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increaseCommitment Increase (including any Loans issued in connection therewith and the application of the proceeds thereof); and
(ii) The conditions precedent set forth in Section 3.2 shall have been satisfied. Immediately after the effectiveness of the Commitment Increase, and their respective Commitments, Schedule 1.1(a) shall automatically be amended to reflect the Commitments of all Lenders after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryCommitment Increase.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may shall have the right, at any time and from time prior to time, the date that is one hundred eighty (180) days prior to the Termination Date by written notice to and in consultation with the Administrative Agent Agent, to request an increase in the aggregate Revolver Commitments (which shall promptly deliver each such requested increase, a copy to the Banks) executed “Commitment Increase”), by a Responsible Officer of the Borrower and having one or more financial institutions existing Lenders increase their respective Revolver Commitments then in effect (any such financial institution referred to in this Section being called each, an “Increasing BankLender”), which may include any Bankby adding as a Lender with a new Revolver Commitment hereunder one or more Persons that are not already Lenders (each, cause the Commitments of the Increasing Banks to be increased (an “Additional Lender”), or cause the Increasing Banks to extend new Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such noticea combination thereof, provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, (y) the aggregate Revolver Commitments shall not exceed $150,000,000 and (z) the aggregate of all Commitment Increases effected shall not exceed $50,000,000, (iii) no Bank Default or Event of Default shall have occurred and be continuing on the applicable Commitment Increase Date (as hereinafter defined) or shall result from any Commitment Increase, (iv) immediately after giving effect to any Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower shall be in compliance with the covenants contained in Article V, (v) no consent of any Lender to such Commitment Increase shall be required and no Lender shall be obligated to participate as a Lender in such Commitment Increase, and (vi) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Commitment Increase by providing such notice to the Administrative Agent ten (10) Business Days before executing a commitment with any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Commitment Increase if such existing Lender provides written notice of its election to participate within ten (10) Business Days of such existing Lender’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Commitment Increase. No Lender shall have any obligation to become an Increasing Lender and any decision by a Lender to increase its Commitment pursuant shall be made in its sole discretion independently from any other Lender. Other than fees payable to this paragraphthe Administrative Agent, (ii) all new Commitments any fees paid by the Borrower for a Commitment Increase to an Increasing Lender, an Additional Lender, and increases in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunderAdministrative Agent, shall be subject to for their own account and shall be in an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion.
(b) Each Additional Lender must qualify as an Eligible Assignee (the selection of which shall include the prior approval of the Administrative Agent (which approval Agent). The Borrower and each Additional Lender shall not be unreasonably withheld) execute a joinder agreement, and (iv) the Borrower and each Increasing Bank, if not already a Bank hereunder, Lender shall become a party to this Agreement by completing and delivering to execute all such other documentation as the Administrative Agent a duly executed accession agreement and the Borrowers may reasonably require, all in a form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Revolver Commitment adjustments referred to in Section 2.14(e); provided that the failure of any Lender that is not an Additional Lender or an Increasing Lender to execute any such documentation shall not impair the ability of the Additional Lenders, the Increasing Lenders and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered to effect a Commitment Increase pursuant to this Section 2.17. Upon 2.14.
(c) If the effectiveness of any Accession aggregate Revolver Commitments are increased in accordance with this Section 2.14, the Borrower (in consultation with the Administrative Agent), Increasing Lender(s) (if any) and Additional Lender(s) (if any) shall agree upon the effective date (the “Commitment Increase Credit Agreement to - Page 49 116414841 v.12 Date,” which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Commitment Increase Date.
(d) Notwithstanding anything set forth in this Agreement Section 2.14 to the contrary, the Borrower shall not incur any Revolver Advances pursuant to any Commitment Increase (and no Commitment Increase shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding effective) unless the foregoing, no increase conditions set forth in Section 2.14(a) as well as the Total Commitments (or in following conditions precedent are satisfied on the applicable Commitment of any Bank) pursuant to this paragraph shall become effective unless Increase Date:
(i) the The Administrative Agent shall have received documents consistent with those delivered under the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) a supplement to this Agreement signed by the Required Lenders and each other Lender committing to the Commitment Increase, setting forth the reallocation of Commitments referred to in Section 3.01(a)(ii) through (v2.14(e), giving effect all other documentation required by the Administrative Agent pursuant to Section 2.14(b) and such other modifications, documents or items as the Administrative Agent, the Lenders or their counsel may reasonably request;
(B) an instrument, duly executed by the Borrower and each Guarantor acknowledging and reaffirming its obligations under this Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such increaseCommitment Increase;
(D) a certificate of the Chief Financial Officer or another Responsible Officer of the Borrower, certifying that (iix) on as of the effective date of such increaseCommitment Increase Date, the all representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents are true and correct in all material respects (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct as of such date), (y) immediately after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the covenants contained in Article V, and (z) no Default shall have or Event of Default has occurred and be continuing is continuing, both immediately before and after giving effect to such Commitment Increase (including any Borrowings in connection therewith and the application of the proceeds thereof);
(E) unless waived by the Administrative Agent and the Additional Lender(s), if any, an opinion or would result therefromopinions of counsel for the Borrower and the Guarantors, in a form satisfactory to Administrative Agent and covering such matters as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have received a certificate reasonably requested; and Credit Agreement - Page 50 116414841 v.12
(F) such other documents or items that the Administrative Agent, the Lenders or their counsel may reasonably request.
(ii) In the case of any Borrowing of Revolver Advances in connection with such Commitment Increase for the purpose of funding an Acquisition, the applicable conditions set forth in this Agreement with respect to that effect dated such date and executed by a Financial Officer Acquisitions shall have been satisfied.
(e) On the Commitment Increase Date, (i) the aggregate principal outstanding amount of the Borrower, and Revolver Advances (iiithe “Initial Advances”) (x) upon the reasonable request of any Bank made at least five (5) days immediately prior to giving effect to the Commitment Increase shall be deemed to be repaid, (ii) immediately after the effectiveness of any Accession Agreementthe Commitment Increase, the Borrower shall be deemed to have provided to such Bank, and such Bank shall be reasonably satisfied with, made new Borrowings of Revolver Advances (the documentation and other information so requested “Subsequent Borrowings”) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior an aggregate principal amount equal to the effectiveness aggregate principal amount of any Accession Agreement the Initial Advances and of the types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.01, (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) at least three such Lender’s pro rata percentage (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such increaseLender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Commitment Increase) of the Initial Advances and their respective Commitments, (z) such Lender’s pro rata percentage (calculated after giving effect to such increasethe Commitment Increase) of the amount of the Subsequent Borrowings, will (v) the Lenders shall be re-establisheddeemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolver Commitments (calculated after giving effect to the Commitment Increase), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Advances to the Lenders entitled thereto, and (vii) the effectiveness of such increase signature pages hereto shall be conditioned deemed amended to reflect the Revolver Commitments of all Lenders after giving effect to the Commitment Increase. The deemed payments made pursuant to clause (i) above in respect of each Tranche Euro-Dollar Advance shall be subject to indemnification by the Borrower pursuant to the provisions of Section 8.05 if the Commitment Increase Date occurs other than on the implementation last day of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryInterest Period relating thereto.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (HMS Income Fund, Inc.)
Increase in Commitments. (a) The Borrower may Agent, with the consent of the Company, shall have the right at any time and from time to time, time to increase the Total Revolving Credit Commitment hereunder by written notice an amount which is less than or equal to $30,000,000 in the Administrative Agent aggregate by (i) requesting (which shall promptly deliver a copy request may be agreed to the Banksor declined by such Lender in its sole discretion) executed that one or more Lenders increase its respective Revolving Credit Commitment or (ii) by a Responsible Officer of the Borrower and adding to this Agreement one or more financial institutions (any as a Lender; provided, however, that each such financial institution referred shall be approved by the Company and the Agent. Such increase in the Total Revolving Credit Commitment shall be effectuated pursuant to an agreement with an Increasing Lender or Additional Lender, as applicable, in this Section being called form and substance satisfactory to the Company and the Agent pursuant to which (x) in the case of an “Increasing Bank”)Additional Lender, such Additional Lender shall undertake a Revolving Credit Commitment, which may include any Bank, cause the Commitments of the Increasing Banks to Revolving Credit Commitment shall be increased (or cause the Increasing Banks to extend new Commitments) in an amount for each at least equal to $7,500,000 or any integral multiple of $500,000 in excess thereof, (y) in the case of an Increasing Bank (which Lender, such Increasing Lender shall not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have any obligation to increase its Revolving Credit Commitment, which increase in its Revolving Credit Commitment pursuant shall be at least equal to this paragraph$5,000,000 or in integral multiple of $500,000 in excess thereof, and (iiz) all new Commitments in each case, such Person shall agree to be bound as a Lender under the terms and increases in existing Commitments becoming effective under this paragraph during the term conditions of this Agreement shall not exceed $200,000,000 in the aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17other Loan Documents. Upon the effectiveness of any Accession Agreement to which such agreement and its acknowledgement by the Company and the Agent (the date of any Increasing Bank is a partysuch effectiveness and acknowledgement, an "Increased Commitment Date"), such Increasing Bank Additional Lender shall thereafter be deemed to be thereupon become a party to "Lender" for all purposes of this Agreement and shall be entitled to all rights, benefits and privileges accorded with a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase Revolving Credit Commitment in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(a)(ii) through (v), giving effect to such increase, (ii) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors amount set forth in such agreement or, as applicable, the Revolving Credit Commitment of such Increasing Lender shall be increased in the amount set forth in such agreement, and this Agreement (including the signature page of such Increasing Lender) shall be true and correct in all material respects and no Default shall have occurred and be continuing deemed amended to the extent, but only to the extent, necessary to reflect the addition of such Additional Lender or would result therefromthe increased Revolving Credit Commitment of such Increasing Lender, the resulting adjustment of the Revolving Credit Commitments arising therefrom and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested adjustments described in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, after giving effect to such increase, and their respective Commitments, after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contrarysubsection 2.03(e).
Appears in 1 contract
Increase in Commitments. The Borrower may at any time (a) Subject to the terms and conditions set forth herein, WIL shall have the right, without the consent of the Lenders but with the prior approval of the Administrative Agent and the Issuing Bank (not to be unreasonably withheld, delayed or conditioned), to cause from time to time, time an increase in the aggregate Commitments (a “Commitment Increase”) by written notice adding to this Agreement one or more additional financial institutions that are not already Lenders hereunder and that are reasonably satisfactory to the Administrative Agent and the Issuing Bank (which shall promptly deliver each a copy to the Banks“CI Lender”) executed or by a Responsible Officer of the Borrower and allowing one or more financial institutions (any such financial institution referred existing Lenders to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new increase their respective Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that (i) no Bank Event of Default shall have any obligation to increase its occurred and be continuing on the effective date of such Commitment pursuant to this paragraphIncrease, (ii) all new Commitments and increases no such Commitment Increase shall be in existing Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed an amount less than $200,000,000 in the aggregate15,000,000, (iii) each Increasing Bankno such Commitment Increase shall cause the aggregate Commitments to exceed $500,000,000, if not already (iv) no Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and (v) if, on the effective date of such Commitment Increase, any Loans have been funded, then the Borrowers shall be obligated to pay any breakage fees or costs or other amounts owing hereunder in connection with the breakage or reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from WIL to the Administrative Agent (a Bank hereunder, “Notice of Commitment Increase”) in the form of Exhibit E attached hereto and shall be subject to the approval of the Administrative Agent (which and the Issuing Bank, such approval shall not to be unreasonably withheld, delayed or conditioned. Each such Notice of Commitment Increase shall specify (i) the proposed effective date of such Commitment Increase, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Commitment Increase, (ii) the amount of the requested Commitment Increase (provided that after giving effect to such requested Commitment Increase, the aggregate Commitments do not exceed the amount set forth in subparagraph (a)(iii) above), (iii) the identity of each CI Lender or Lender that has agreed in writing to increase its Commitment hereunder, and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing the amount of the respective Commitments of the then existing Lenders and delivering to the CI Lenders from and after the Commitment Increase Effective Date. The Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to and the Issuing Bank shall review each Notice of Commitment Increase and shall notify WIL whether or not the Administrative Agent and the Borrower (an “Accession Agreement”)Issuing Bank approve the proposed Commitment Increase, such approval not to be unreasonably withheld, delayed or conditioned. New Commitments If the Administrative Agent and increases in Commitments the Issuing Bank approve such Commitment Increase, the Administrative Agent and the Issuing Bank shall become execute a counterpart to the Notice of Commitment Increase and such Commitment Increase shall be effective on the proposed effective date specified set forth in such notice (if the Administrative Agent and the Issuing Bank consented to such Commitment Increase prior to such proposed date) or on another date as determined by WIL and agreed to by the Administrative Agent and the Issuing Bank (such date referred to herein as the “Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such CI Lender’s New Funds Amount of each applicable notices delivered Currency, which amounts, for each such CI Lender, shall constitute Loans made by such CI Lender to the Borrowers pursuant to this Section 2.17. Upon the effectiveness of any Accession Agreement to which any Increasing Bank is a partyon such Commitment Increase Effective Date, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless (iii) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each Reducing Percentage Lender its Reduction Amount of each applicable Currency, which amounts, for each such Reducing Percentage Lender, shall have received documents consistent with those delivered under constitute a prepayment by the Borrowers pursuant to Section 3.01(a)(ii) through (v2.07(a), giving effect to such increaseratably in accordance with the respective principal amounts thereof, (ii) on of the effective date principal amounts of all then outstanding Loans of such increase, the representations and warranties of the Borrower and the Guarantors set forth in this Agreement shall be true and correct in all material respects and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerReducing Percentage Lender, and (iii) (x) upon the reasonable request of Borrowers shall pay to each Lender any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and breakage fees or costs or other information so requested amounts owing hereunder in connection with applicable “know your customer” the breakage or reallocation of any outstanding Loans.
(d) For purposes of this Section 2.15 and anti-money-laundering rules and regulations, including, without limitationExhibit E, the PATRIOT Actfollowing defined terms shall have the following meanings: (i) “New Funds Amount” means, for any Lender or CI Lender and for any Currency, the amount equal to the product of such Lender’s increased Commitment or such CI Lender’s Commitment (as applicable) represented as a percentage of the aggregate Commitments after giving effect to the Commitment Increase, times the aggregate principal amount of the outstanding Loans denominated in each case at least three (3) Business Days such Currency immediately prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior giving effect to the effectiveness Commitment Increase, if any, as of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, Commitment Increase Effective Date (without regard to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, aggregate principal amount of Loans as a result of borrowings made after giving effect to the extent there are outstanding Advances, Commitment Increase on such Commitment Increase Effective Date); (ii) “Reducing Percentage Lender” means each then existing Lender immediately prior to giving effect to a Commitment Increase that does not increase its respective Commitment as a result of such Commitment Increase and whose relative percentage of the parties hereto aggregate Commitments shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, reduced after giving effect to such increaseCommitment Increase; and (iii) “Reduction Amount” means, for any Reducing Percentage Lender and their respective Commitmentsfor any Currency, the amount by which such Reducing Percentage Lender’s outstanding Loans denominated in such Currency decrease as of a Commitment Increase Effective Date (without regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving effect to such increase, will be re-established, and the effectiveness of such increase shall be conditioned on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryapplicable Commitment Increase).
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Increase in Commitments. The (a) Borrower may at any time and from time shall have the option, without the consent of the Lenders, to timecause a single increase in the Term Commitment by adding, by written notice subject to the prior approval of Administrative Agent (which shall promptly deliver a copy such approval not to the Banks) executed by a Responsible Officer of the Borrower and be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (any such financial institution referred collectively, the "New Term Lenders") or by allowing one or more Lenders to in this Section being called an “Increasing Bank”), which may include any Bank, cause the Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to extend new increase their respective Term Commitments) in an amount for each Increasing Bank (which shall not be less than $10,000,000) set forth in such notice, ; provided that however that: (i) prior to and after giving effect to the increase, no Bank Default or Event of Default shall have any obligation to increase its Commitment pursuant to this paragraphoccurred hereunder and be continuing, (ii) all new Commitments and increases in existing Commitments becoming effective under this paragraph during no such increase shall cause the term of this Agreement shall not Term Commitment to exceed $200,000,000 in the aggregate725,000,000, (iii) each Increasing Bankno Lender's Term Commitment shall be increased without such Lender's consent, (iv) such increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Term Lenders, if any, and Lenders increasing their Term Commitments, if any, and which shall indicate the amount and allocation of such increase in the Term Commitment and the effective date of such increase (the "Term Loan Increase Effective Date"), and (v) Borrower shall use all proceeds of such increase (A) to finance all or a portion of the purchase price of the TXU Fuel Acquisition and (B) to pay the out-of-pocket expenses incurred and fees payable in respect of the TXU Fuel Acquisition and this Agreement. Subject to the terms and conditions hereof (including Section 10.14) and provided that the aggregate amount of all Term Loans does not already exceed the total Term Commitment, (i) each New Lender agrees to make a Bank hereunderTerm Loan to Borrower on the Term Loan Increase Effective Date in the amount of such Lender's Term Commitment set forth on the revised Lender Schedule, and (ii) each existing Lender agrees to make a Term Loan to Borrower on the Term Loan Increase Effective Date in the amount of the increase, if any, in such Lender's Term Commitment.
(b) Borrower shall be have the option, without the consent of the Lenders, from time to time to cause one or more increases in the Revolver Commitment by adding, subject to the prior approval of the Administrative Agent (which such approval shall not to be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (collectively, the "New Revolver Lenders", and together with the New Term Lenders, the "New Lenders") or by allowing one or more Lenders to increase their respective Revolver Commitments; provided however that: (i) 004726 000020 DALLAS 1786243.3 SECOND AMENDED AND RESTATED CREDIT AGREEMENT [CONFORMED THROUGH AUGUST 2004] prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (ii) no such increase shall cause the Revolver Commitment to exceed $225,000,000, (iii) no Lender's Revolver Commitment shall be increased without such Lender's consent, and (iv) each Increasing Banksuch increase shall be evidenced by a Commitment Increase Supplement in form and substance acceptable to Administrative Agent and executed by Borrower, Administrative Agent, New Revolver Lenders, if not already a Bank hereunderany, and Lenders increasing their Revolver Commitments, if any, and which shall become a party indicate the amount and allocation of such increase in the Revolver Commitment and the effective date of such increase (the "Revolver Loan Increase Effective Date"). Borrower shall borrow and prepay Revolver Loans on each Revolver Loan Increase Effective Date (and pay any additional amounts required pursuant to this Agreement by completing and delivering Section 3.6) to the extent necessary to keep the outstanding Revolver Loans of each Lender ratable with such Lender's revised Revolver Percentage after giving effect to any nonratable increase in the Revolver Commitments under this Section 2.13(b).
(c) As a condition precedent to each increase pursuant to subsections (a) and (b) above, Borrower shall deliver to Administrative Agent a duly executed accession agreement in certificate of each Restricted Person dated as of the Term Loan Increase Effective Date or Revolver Loan Increase Effective Date, as applicable (each an "Increase Effective Date"), signed by a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the date specified in the applicable notices delivered pursuant to this Section 2.17. Upon the effectiveness Co-Chief Executive Officer of any Accession Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) pursuant to this paragraph shall become effective unless Restricted Person (i) certifying and attaching the Administrative Agent resolutions adopted by such Restricted Person approving or consenting to such increase, (ii) certifying that each of the conditions to such increase set forth in Section 2.13(a) or (b), as applicable, shall have received documents consistent with those delivered under Section 3.01(a)(iioccurred and been complied with, and (iii) through (v)certifying that, before and after giving effect to such increase, (iiA) on the effective date of such increase, the representations and warranties of the Borrower and the Guarantors set forth contained in this Agreement shall be and the other Loan Documents made by it are true and correct in all material respects on and no Default shall have occurred and be continuing or would result therefrom, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer as of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession Agreement and (y) at least three (3) Business Days prior to the effectiveness of any Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On the effective date of any increase in the Commitments pursuant to this Section 2.17, to the extent there are outstanding Advances, the parties hereto shall implement such arrangements as may be agreed upon by the Borrower and the Administrative Agent to ensure that the proportion between the Banks’ outstanding Advances, Increase Effective Date after giving effect to such increase, except to the extent that such representations and their respective Commitmentswarranties specifically refer to an earlier date, after giving effect in which case they were true and correct in all material respects as of such earlier date, and (B) no Default or Event of Default exists.
(d) On each Increase Effective Date, Administrative Agent shall provide to Borrower and each Lender a revised Lender Schedule reflecting the changes, as applicable, in the Revolver Commitment and/or the Term Commitment, each Lender's Revolver Percentage, and/or each Lender's Percentage Share resulting from such increase. On each Increase Effective Date, will be re-establishedBorrower shall execute and deliver a Revolver Note (in the form of Exhibit A-1 with appropriate insertions) and/or a Term Note (in the form of Exhibit A-2 with appropriate insertions), as applicable, payable to the order of each New Lender and each existing Lender that has agreed to increase its Revolver Commitment and/or Term Commitment, as applicable. Each financial institution that becomes a New Lender pursuant to this Section 2.13 by the effectiveness execution and delivery to Administrative Agent of such increase the applicable Commitment Increase Supplement, shall be conditioned a "Lender" for all purposes under this Agreement on the implementation of such arrangements. This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the contraryapplicable Increase Effective Date.
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