Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto; (B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower; (G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):
Appears in 2 contracts
Sources: Credit Agreement (Cree Inc), Credit Agreement (Cree Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect in substantially the form of Exhibit J, request that the total Commitments be increased by an aggregate amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)exceed $1,500,000,000; provided that the Borrower may not make more than 3 such requests. Such notice shall set forth the amount of the requested increase (1) the total aggregate principal amount for all such Incremental Loan Commitments which shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than in a minimum principal amount of $500,000,000 and in minimum increments of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”above that amount) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice is delivered and which, in any event, must be on or prior to Administrative Agentthe Commitment Termination Date). The Borrower may invite any Lender, any Affiliate Upon the receipt of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to such request by the Administrative Agent, the Administrative Agent shall give notice promptly to provide an Incremental Loan each Bank substantially in the form of Exhibit K, which notice will offer each such Bank the opportunity to increase its Commitment (any by its applicable Pro Rata Share of the proposed increased amount. Each such PersonBank shall, an “Incremental Lender”). Any proposed Incremental Lender offered or approached by notice to provide the Borrower and the Administrative Agent substantially in the form of Exhibit L, 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 Bank so agreeing being an “Increasing Bank”) or decline to increase its Commitment (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other entities (any such bank or other entity being called an “Augmenting Bank”), in its sole discretionwhich may include any Bank, to provide extend Bank Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute a joinder substantially in the form of Exhibit M or such Incremental Loan Commitmentother documentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any Incremental Loan Commitment such increase 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 Banks. The Borrower and the Administrative Agent shall execute an amendment to Schedule 1 evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.8, the outstanding Loans (if any) are held by the Banks in accordance with their new applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of the Administrative Agent, following consultation with the Borrower, (i) by requiring the outstanding Loans to be prepaid with the proceeds of a new Loan, (ii) by causing Non-Increasing Banks to assign portions of their outstanding Loans to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all principal and interest and fees accrued as to such Loans up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.5, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Commitments shall become effective as under this Section 2.8 unless (i) on the date of such Increased Amount Date; provided that:
increase, (A) no Default shall have occurred and be continuing or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment will result from the increase in Commitments as set forth herein and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained made by the Borrower in Section 6 8 shall be true and correct on and as of the date of the increase in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date Commitments with the same force and effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of unless stated to relate solely to an earlier date, in which representation case such representations and warranty warranties shall remain be true and correct in all respects as of such earlier date);
, (Dii) the proceeds of any Incremental Loans Borrower Debt Ratings assigned by S&P and ▇▇▇▇▇’▇ to the Index Debt shall be used for general corporate purposes equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Borrower and its Subsidiaries Effective Date (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and after giving effect to the Incremental Loans made thereunder) shall constitute Obligations incurrence of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in Commitment increase or Loans, as the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementmay be), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to (iii) the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent shall have received a compliance certificate certifying and the Borrower, but will not showing (in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then reasonable detail and with appropriate calculations and computations in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be respects reasonably satisfactory to the Administrative Agent and Agent) that (A) each of the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (B) on a Lender joinder agreement):historical pro forma basis (after giving effect to the incurrence of the Commitment increase or Loans, as the case may be) as of the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 9.1, financial statements have been, or are required to have been, delivered by the Borrower, the Borrower would be in compliance with Section 9.10 as of the last day of such fiscal quarter and (iv) the Administrative Agent shall have received all fees to be mutually agreed between the Borrower and the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (American Honda Finance Corp), Credit Agreement (American Honda Finance Corp)
Increase in Commitments. (a) At any The Company may, on behalf of itself or the Canadian Borrower, from time following the Closing Date, the Borrower may to time by written notice to the U.S. Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders and the Canadian Administrative Agent), request that the establishment of:
U.S. Commitments and/or the Canadian Commitments be increased by an amount not less than US$10,000,000 for any such increase; provided that after giving effect to all such increases the sum of the total Commitments shall not exceed US$2,000,000,000 minus any amount by which the Commitments shall have been reduced pursuant to Section 2.09. Such notice shall set forth (i) one whether such increase in Commitments shall apply to the U.S. Commitments or more incremental term loan commitments (any such incremental term loan commitmentCanadian Commitments, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases the amount of the requested increase in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”(iii) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 U.S. Lender (in the case of a requested increase in U.S. Commitments) or Canadian Lender (in the case of a requested increase in Canadian Commitments) the opportunity to increase its Commitment of the applicable Class, by its Applicable Percentage of the proposed increased amount. Each such Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the U.S. Administrative AgentAgent given not more than 10 days after the date of the Company’s notice, either agree to provide an Incremental Loan Commitment (any such Personincrease its applicable Commitment, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment such Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its applicable Commitment) (each such Lender so declining or deemed to have declined being a “Non-Increasing Lender”). 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 applicable Lenders shall have declined the requested increase or agreed pursuant to the preceding sentence to increase their applicable Commitments by an aggregate amount less than the increase in the total Commitments of the applicable Class requested by the Company, the Company may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide extend Commitments of the applicable Class or increase their existing Commitments of the applicable Class in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the U.S. Administrative Agent, the Swingline Lender and each Issuing Bank (which approval shall not be unreasonably withheld) and the Company and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the U.S. Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any Incremental Loan increase in the total Commitments 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.
(b) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments of either Class pursuant to this Section 2.20 (the “Commitment Increase”), (i) the aggregate principal amount of the Loans of the same Class outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall become effective as of such Increased Amount Date; provided that:
be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Applicable Agent in same day funds an amount equal to the difference between (A) no Default or Event the product of Default shall exist on (1) such Increased Amount Date before or Lender’s Applicable Percentage (calculated after giving effect to (1the Commitment Increase) any Incremental Loan Commitment and multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Administrative AgentCommitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Borrower is Commitment Increase shall pay to the Applicable Agent in compliance with same day funds an amount equal to the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Lender’s Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (on a pro forma basis) to (x) any Incremental Loan Commitment, (y2) the making amount of any Incremental Loans pursuant thereto the Subsequent Borrowings, and (with any Incremental Loan Commitment being deemed to be fully fundediv) after the Applicable Agent receives the funds specified in clauses (ii) and (ziii) above, the Applicable 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 Applicable 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 Applicable Percentage (calculated after giving effect to such Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the applicable Borrower or Borrowers shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of its or their Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Applicable Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the applicable Borrower or Borrowers shall pay each Increasing Lender and each Non-Increasing Lender any Permitted Acquisition consummated and all accrued but unpaid interest on its or their Initial Loans. The deemed payments made pursuant to clause (i) above in connection therewith;respect of each Eurodollar Loan shall be subject 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.
(Cc) each Increases and new Commitments of either Class created pursuant to this Section 2.20 shall become effective on the date specified in the notice delivered by the Company pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Commitments of a Class (or in the Commitment of any Lender) or addition of a new Lender shall become effective under this Section unless, (i) on the date of such increase, (A) the representations and warranties contained set forth in Section 6 this Agreement shall be true and correct in all material respects, except to the extent respects (without duplication of any materiality qualifier) on and as of such representation and warranty is qualified by materiality or reference to Material Adverse Effectdate (unless expressly made as of another date, in which case, case such representation representations and warranty warranties shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on material respects (without duplication of any materiality qualifier)on and as of such other date) and (B) on such date and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing and the U.S. Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer, and (except ii) the U.S. Administrative Agent shall have received (with sufficient copies for any each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the applicable Borrower or Borrowers to borrow hereunder after giving effect to such representation and warranty that by its terms is made only as of increase (or, if such documents delivered on the Effective Date already contemplate an earlier date, which representation and warranty shall remain true and correct as increase in an amount at least equal to the amount of such earlier date);
(D) increase, stating that such documents remain in full force and effect on the proceeds date of any Incremental Loans shall be used for general corporate purposes of the Borrower such increase and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will have not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan anywise been annulled, modified, rescinded or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):revoked).
Appears in 2 contracts
Sources: Credit Agreement (Sysco Corp), Credit Agreement (Sysco Corp)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower, the Borrower may by written notice to the Administrative Agent elect Agent, may request that the Class A Commitments be increased; provided that the aggregate amount by which the Class A Commitments are increased pursuant to request the establishment of:
this Section shall not exceed $150,000,000. Such notice shall set forth (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
the amount of the requested increase and (ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 is delivered to Administrative Agent. The unless otherwise agreed by the Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to and the Administrative Agent), and shall offer each Class A Lender the opportunity to provide an Incremental Loan Commitment (any increase its Class A Commitment, by its Applicable Class A Percentage of the proposed increased amount. Each such PersonClass A Lender shall, an “Incremental Lender”). Any proposed Incremental Lender offered or approached by notice to provide the Borrower and the Administrative Agent given not more than 10 days after the date of the Borrower’s notice, either agree to increase its Class A Commitment, by all or a portion of the offered amount (each Class A Lender so agreeing being an “Increasing Lender”) or decline to increase its Class A Commitment (and any Incremental Loan Commitment such Class A Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Class A Commitment) (each such Class A Lender so declining or deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Class A Lenders shall have agreed pursuant to the preceding sentence to increase their Class A Commitments by an aggregate amount less than the increase in the total Class A Commitments requested by the Borrower, the Borrower may, at its expense, arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), which may elect or decline, in its sole discretioninclude any Class A Lender, to provide extend Class A Commitments or increase their existing Class A Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Class A Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall reasonably specify to evidence its Class A Commitment and/or its status as a Class A Lender hereunder. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:increase in the total Class A Commitments may be made in an amount which 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.
(Ab) no Default On the effective date (the “Increase Effective Date”) of any increase in the Class A Commitments pursuant to this Section 2.22 (the “Commitment Increase”), if any Class A Revolving Loans are outstanding, the Borrower (i) shall prepay all Class A Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its or Event of Default their option, fund such prepayment by simultaneously borrowing Class A Revolving Loans in accordance with this Agreement, which Class A Revolving Loans shall exist on such Increased Amount Date before or be made by the Class A Lenders ratably in accordance with their respective Applicable Class A Percentage (calculated after giving effect to (1) any Incremental Loan the Class A Commitment and (2) the making Increase); provided that such prepayment of any Incremental Class A Revolving Loans pursuant thereto;to this paragraph shall not be required if such Class A Commitment Increase is effected entirely by ratably increasing the Class A Commitments of the existing Class A Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.15.
(Bc) Increases and new Class A Commitments created pursuant to this Section 2.22 shall become effective on the Administrative Agent and date specified in the Lenders shall have received from notice delivered by the Borrower a Pro Forma Compliance Certificate demonstrating, in form pursuant to the first sentence of paragraph (a) above unless otherwise agreed by the Borrower and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered . A Commitment Increase shall become effective pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect an amendment (on a pro forma basisthe “Incremental Amendment”) to (x) any Incremental Loan Commitmentthis Agreement executed by the Borrower, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) each Increasing Lender, each Augmenting Lender and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent. The Incremental Amendment may, without the Incremental Lenders making consent of any other Lenders, effect such Incremental Term Loan amendments to this Agreement and the Borrowerother Loan Documents as may be necessary or appropriate, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity reasonable opinion of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;, to effect the provisions of this Section.
(Gd) Notwithstanding the foregoing, no increase in the case total Class A Commitments (or in the Class A Commitment of each Incremental Revolving Credit Increase any Class A Lender) or addition of a new Class A Lender shall become effective under this Section unless (i) on the terms effective date of which shall be such increase, the conditions set forth in Section 4.02 shall be satisfied as though a Borrowing were being made on such date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (with sufficient copies for each of the Class A Lenders) documents consistent with those delivered on the Restatement Effective Date under clauses (c) and (d) of Section 6 of the Amendment and Restatement Agreement as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase (or, if such documents delivered on the Restatement Effective Date already contemplate an increase in an amount at least equal to the amount of such increase, stating that such documents remain in full force and effect on the date of such increase and have not been annulled, modified, rescinded or revoked), (iii) no single Class A Lender joinder agreement):or Augmenting Lender shall participate in such increase in an amount exceeding $50,000,000, (iv) no Default exists or would exist after giving effect thereto and (v) after giving effect to such increase the ratio of the Collateral Value Amount to the Secured Obligation Amount (determined on a pro forma basis as if the Aggregate Revolving Credit Exposure were equal to the total Commitments) shall be at least 1.75:1.00.
Appears in 2 contracts
Sources: Credit Agreement (American Axle & Manufacturing Holdings Inc), Credit Agreement (American Axle & Manufacturing Holdings Inc)
Increase in Commitments. (ai) At any time following Twice per calendar year the Closing DateBorrowers may, the Borrower may by written notice to the Administrative Agent elect Agent, request that the Total Revolving Commitment be increased by an amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases exceed $25,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) increases from the total aggregate amount for each Incremental Loan Commitment (and Closing Date until the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 orMaturity Date, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes provided that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(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. The Administrative Agent shall exist deliver a copy of such request to each Lender. The Borrowers shall set forth in such request the amount of the requested increase in the Total Revolving 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 Increased Amount Date before 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, in any event, must be at least 360 days prior to the Maturity Date), and shall offer each Lender the opportunity to increase its Revolving Commitment by its Revolving Facility Percentage of the proposed increased amount. Each Lender shall, by notice to the Borrowers and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving 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 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 Revolving Commitment and each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). If, on the 10th day after the Administrative Agent shall have delivered notice as set forth above, the Increasing Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Commitments by an aggregate amount less than the increase in the Total Revolving Commitment requested by the Borrowers, the Borrowers may arrange for one or more banks or other entities that are Eligible Assignees (each such Person so agreeing being an “Augmenting Lender”), and the Borrowers and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Commitment and/or its status as a Lender with a Revolving Commitment hereunder. Any increase in the Total Revolving Commitment may be made in an amount that is less than the increase requested by the Borrowers if the Borrowers are unable to arrange for, or choose not to arrange for, Augmenting Lenders.
(ii) Each of the parties hereto agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the Total Revolving Commitment pursuant to this Section 2.1(b), the outstanding Revolving Loans (1if any) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and are held by the Lenders shall have received from with Revolving Commitments in accordance with their new Revolving Facility Percentages. This may be accomplished at the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to discretion of the Administrative Agent, that : (w) by requiring the Borrower is in compliance outstanding Loans to be prepaid with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to proceeds of new Borrowings; (x) any Incremental Loan Commitment, by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the making Borrowings outstanding at the time of any Incremental Loans increase in the Total Revolving Commitment pursuant thereto (to this Section 2.1(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such Borrowings other than in accordance with any Incremental Loan Commitment being deemed to be fully funded) and their new Revolving Facility Percentages; or (z) by any Permitted Acquisition consummated in connection therewith;
(C) each combination of the representations and warranties contained foregoing. Any prepayment or assignment described in Section 6 this paragraph (ii) shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality Section 2.7 hereof but otherwise without premium or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):penalty.
Appears in 2 contracts
Sources: Credit Agreement (Central Hudson Gas & Electric Corp), Credit Agreement (Ch Energy Group Inc)
Increase in Commitments. (a) At any time following the Closing Date, the The Borrower may by written notice to the Administrative Agent elect to request (x) prior to the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitmentMaturity Date for the Revolving Facility, an “Incremental Term Loan Commitment”) increase to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the existing Revolving Commitments (any such increaseeach, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement and/or (any such increasey) the establishment of one or more new term loan commitments (each, an “Incremental Revolving Credit Increase” andTerm Commitment”), together with by an aggregate amount not in excess of the Incremental Term Loans, the “Incremental Loans ”)Cap; provided that (1i) the total aggregate principal amount any such request for all such Incremental Loan Commitments an increase shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than in a minimum principal amount of $10,000,000 or10,000,000, if less, and (ii) the remaining amount permitted pursuant to the foregoing clause Borrower may make a maximum of five (1)5) such requests. Each such notice shall specify (i) the date (each, an “Increased Amount Increase Effective Date”) on which the Borrower proposes that any the Incremental Loan Commitment Facility shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, Agent and (ii) the identity of each Eligible Assignee to whom the Borrower proposes any portion of such Incremental Facility be allocated and the amounts of such allocations. Each Lender shall notify the Administrative Agent within such time period (i) whether or not it agrees to provide an Incremental Loan Commitment Term Commitment, and (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered ii) whether or approached not it agrees to provide all an Incremental Revolving Commitment and, if so, whether by an amount equal to, greater than, or a portion of any Incremental Loan Commitment may elect or decline, in less than its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as Applicable Revolving Percentage of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)requested increase, as applicable, both before and after giving effect (on a pro forma basis) . Any Lender not responding within such time period shall be deemed to (x) any have declined to provide an Incremental Loan Term Commitment or an Incremental Revolving Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):applicable.
Appears in 2 contracts
Sources: Credit Agreement (Helen of Troy LTD), Credit Agreement (Helen of Troy LTD)
Increase in Commitments. (a) At any The Borrower may, from time following the Closing Date, the Borrower may to time by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
Commitments be increased by an amount not less than $10,000,000 for any such increase; provided that after giving effect to all such increases the total Commitments shall not exceed $2,500,000,000 minus any amount by which the Commitments shall have been reduced pursuant to Section 2.09. Such notice shall set forth (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
the amount of the requested increase in the Commitments and (ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 10 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan Commitment (any such Personincrease its Commitment, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment 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) (each such Lender so declining or deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have declined the requested increase or agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and each Issuing Bank (which approval shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:increase in the total Commitments may be made in an amount which 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.
(Ab) no Default or Event On the effective date (the “Increase Effective Date”) of Default any increase in the total Commitments pursuant to this Section 2.20 (the “Commitment Increase”), (i) each of the Non-Increasing Lenders shall exist assign to each of the Increasing Lenders and Augmenting Lenders, and each of the Increasing Lenders and Augmenting Lenders shall purchase from each of the Non-Increasing Lenders, at the principal amount thereof, such interests in the outstanding Loans and participations in Letters of Credit outstanding on such Increased Amount Increase Effective Date before or that will result in, after giving effect to (1) any Incremental Loan Commitment all such assignments and (2) the making purchases, such Loans and participations in Letters of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Credit being held by Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, ratably in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance accordance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and their Commitments after giving effect (on a pro forma basis) to (x) the addition of any Incremental Augmenting Loan CommitmentCommitment to the Commitments, (yii) each Augmenting Loan Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and have the making same terms as any existing Loan and (iii) each Augmenting Lender shall become a Lender with respect to the Commitments and all matters relating thereto.
(c) Increases and new Commitments created pursuant to this Section 2.20 shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Incremental Loans pursuant thereto Lender) or addition of a new Lender shall become effective under this Section unless, (with any Incremental Loan Commitment being deemed to be fully fundedi) and on the date of such increase, (zA) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained set forth in Section 6 this Agreement shall be true and correct in all material respects, except to the extent respects (without duplication of any materiality qualifier) on and as of such representation and warranty is qualified by materiality or reference to Material Adverse Effectdate (unless expressly made as of another date, in which case, case such representation representations and warranty warranties shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made material respects (without duplication of any materiality qualifier) on and as of such other date) and (B) on such date and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer, and (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(Dii) the proceeds Administrative Agent shall have received (with sufficient copies for each of any Incremental Loans shall be used for general the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to the corporate purposes power and authority of the Borrower and its Subsidiaries to borrow hereunder after giving effect to such increase (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and or, if such documents delivered on the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) Effective Date already contemplate an increase in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable an amount at least equal to the Administrative Agentamount of such increase, stating that such documents remain in full force and effect on the Incremental Lenders making date of such Incremental Term Loan increase and the Borrower, but will have not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan anywise been annulled, modified, rescinded or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):revoked).
Appears in 1 contract
Sources: Credit Agreement (Sysco Corp)
Increase in Commitments. At their election, the Borrowers may, upon notice from the Company to the Administrative Agent (a) At any which shall promptly notify the Lenders), from time following to time on or 47 after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Commitments (any such increase, an a “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1i) at the total aggregate principal amount for all time of any such Incremental Loan Commitments request and upon the effectiveness of the Commitment Increase referred to below, no Default shall not exist and Holdings shall be in pro forma compliance with the financial covenants set forth in Section 7.11 (as demonstrated in a Compliance Certificate executed by a Responsible Officer of Holdings), (ii) no existing Lender shall be required to provide any portion of any date of incurrence thereofCommitment Increase, (iii) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) Increase shall not be less than in a minimum principal amount of $10,000,000 orand in increments of $1,000,000 in excess thereof, if less(iv) no more than three requests for a Commitment Increase may be made during the term of this Agreement and (v) the aggregate amount of all such Commitment Increases shall not exceed, collectively, $50,000,000 (which such amount shall be reduced on a dollar-for-dollar basis for the amount of the Aggregate Commitments in excess of $100,000,000 on the Closing Date). At the time of sending such notice, the remaining amount permitted pursuant Company (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the foregoing clause (1Lenders). Each Any such notice shall specify set forth the date amount and terms of the relevant Commitment Increase requested by the Borrowers and to be agreed by any Lenders or Additional Lenders (eachas defined below) providing such Commitment Increase. The Borrowers may arrange for one or more banks or other financial institutions, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, each of which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative AgentAgent and, with respect to Commitment Increases, the Swing Line Lenders and the L/C Issuers (any such bank or other financial institution being called an “Additional Lender”), to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan the Commitment may elect or declineIncrease, in its sole discretionand each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of such Incremental Loan CommitmentCommitment Increase. Any Incremental Loan Commitment Each Additional Lender shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect a Lender hereunder pursuant to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, joinder agreement in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel. As a condition precedent to any Commitment Increase, that the Borrower is in compliance with Company shall deliver to the financial covenants set forth in Section 7.10 based on Administrative Agent and the financial statements most recently delivered Lenders such information as may be requested pursuant to Section 7.1(a) or 7.1(b4.01(a)(xi), and to the Administrative Agent a certificate of each Loan Party dated as applicableof the effective date of any such Commitment Increase (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (a) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Commitment Increase, both and (b) in the case of the Company, certifying that, before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch Commitment Increase, (yi) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article V and the other Loan Documents are true and correct in all material respectsrespects on and as of the effective date of any such Commitment Increase, except that (A) if a qualifier relating to the extent any such representation and warranty is qualified by materiality or reference to materiality, Material Adverse Effect, in which caseEffect or a similar concept applies, such representation and or warranty shall be is true and correct in all respects, on (B) to the extent that such Increased Amount Date with the same effect as if made on representations and as of such date (except for any such representation and warranty that by its terms is made only as of warranties specifically refer to an earlier date, in which representation and warranty shall remain case they are true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is true and correct in all respects as of such earlier date);
, and (DC) for purposes of this Section 2.15, the proceeds representations and warranties contained in subsections (a) and (b) of any Incremental Loans Section 5.05 shall be used for general corporate purposes deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) no Default exists. No Commitment Increase shall increase the Letter of Credit Sublimit or the Swing Line Sublimit without the written consent of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and L/C Issuers or the Incremental Loans made thereunder) Swing Line Lenders, as applicable. This Section shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) supersede any provisions in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Sections 2.13 or 10.01 to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Increase in Commitments. (a) At any time following after the Closing Date, the Borrower may may, by written notice to the Administrative Agent elect Agent, request that the Total Commitment be increased by an amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases exceed $50,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) increases from the total aggregate amount for each Incremental Loan Commitment (and Closing Date until the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 orMaturity Date, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes provided that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(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. The Administrative Agent shall exist deliver a copy of such request to each Lender. The Borrower shall set forth in such request 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 Increased Amount Date before 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, 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) (each such Person so agreeing being an “ Augmenting Lender ”) and/or the Borrower may offer to each Lender the opportunity to increase its Commitment by its Percentage of the proposed increased amount. Each Lender shall, by notice to 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 after giving effect to any increase in the Total Commitment pursuant to this Section 3.2(b), the outstanding Loans (1if any) any Incremental Loan Commitment 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; (2y) by permitting the making Borrowings outstanding at the time of any Incremental Loans increase in the Total Commitment pursuant thereto;
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 Borrowings other than in accordance with their new Percentages; or (Bz) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (ii) shall be subject to Section 2.7 hereof but otherwise without premium or penalty. In addition, in connection with any increase in the Total Commitment pursuant to this Section the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingmay, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance consultation with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in appoint any event have Lender as a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan Syndication Agent, Documentation Agent, Co-Agent or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):similar title.
Appears in 1 contract
Sources: Credit Agreement
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) Subject to the conditions set forth in clauses (ii) and (iii) of this Section 2.02(a), the Co-Borrowers may request that the amount of the aggregate Commitments be increased one or more incremental term loan commitments (times, in each case in a minimum amount of $2,500,000 or in integral multiples of $2,500,000 in excess thereof; provided that the aggregate Commitments after any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); orincrease may not exceed $150,000,000.
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment increase shall be effective, which shall be a date not less than ten (10) Business Days after effective only upon the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
following conditions being satisfied: (A) no Default or Event of Default shall exist on such Increased Amount Date has occurred and is continuing at the time thereof or would be caused thereby, (B) immediately before or and after giving effect to (1) such increase, the Loan Parties shall be in pro forma compliance with the financial covenants in Section 7.09, together with calculations and any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, supporting documentation demonstrating such pro forma compliance in form and substance reasonably satisfactory to the Administrative Agent, that (C) either the Borrower Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments in compliance with its sole discretion in the amount of the requested increase or other financial covenants set forth institutions agree to make a Commitment in Section 7.10 based on the amount of the difference between the amount of the increase requested by the Co-Borrowers and the amount by which some or all of the Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments, (D) such increase shall be subject to the approval of the Agent and the Issuing Banks, which consent shall not be unreasonably withheld, conditioned or delayed, (E) such Banks and other financial statements most recently institutions, if any, shall have executed and delivered pursuant to Section 7.1(a) the Agent a Commitment Increase Agreement or 7.1(b)a New Bank Agreement, as applicable, both before and after giving effect (on F) the Co-Borrowers shall have delivered such evidence of authority for the increase (including without limitation, certified resolutions of the applicable managers and/or members of the Co-Borrowers authorizing such increase) as the Agent may reasonably request.
(iii) Each financing institution to be added to this Agreement as described in Section 2.02(a)(ii)(C) above shall execute and deliver to the Agent a pro forma basisNew Bank Agreement, pursuant to which it becomes a party to this Agreement. Each Bank agreeing to increase its Commitment as described in Section 2.02(a)(ii)(C) shall execute and deliver to (x) any Incremental Loan the Agent a Commitment Increase Agreement pursuant to which it increases its Commitment hereunder. In addition, a Responsible Officer shall execute and deliver to the Agent, for each Bank being added to this Agreement, a Note payable to such new Bank in the principal amount of the Commitment of such Bank, and for each Bank increasing its Commitment, (ya replacement Note payable to such Bank, in the principal amount of the increased Commitment of such Bank. Each such Note shall be dated the effective date of the pertinent New Bank Agreement or Commitment Increase Agreement. In the event a replacement Note is issued to a Bank, such Bank shall ▇▇▇▇ the original note as “REPLACED” and shall return such original Note to the Co-Borrowers. Upon execution and delivery to the Agent of the Note and the execution by the Agent of the relevant New Bank Agreement or Commitment Increase Agreement, as the case may be, such new financing institution shall constitute a “Bank” hereunder with a Commitment as specified therein, or such existing Bank’s Commitment shall increase as specified therein, as the case may be, and the Agent shall notify the Co-Borrowers and all Banks of such addition or increase, and the final allocations thereof, and provide a revised Schedule 2.01 reflecting such additions or increase together with a schedule showing the revised Working Capital Advance Cap, Maximum Working Capital Advance Cap, Bridge Advance Cap, Maximum Bridge Advance Cap and L/C Cap as increased pursuant to Section 2.02(b) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;below.
(Civ) each of Notwithstanding anything to the representations and warranties contained contrary in this Section 6 2.02(a), the Banks having Commitments hereunder at the time any such increase is requested shall have the first right, but shall not be true and correct obligated, to participate in all material respects, except such increase by agreeing to increase their respective Commitments by their Credit Percentage to the extent of such increase. The Agent shall not, and shall not be obligated to, permit any financial institutions that do not have, at that time, Commitments hereunder to make commitments for portions of the requested increase not assumed by the Banks having Commitments hereunder until each of such representation Banks have agreed to increase their Commitments or declined to do so. To facilitate the Banks’ right of first refusal, HoldCo shall, by written notice to the Agent (which shall promptly deliver a copy to each Bank) given not less than 15 days prior to the requested effective date of the increase in Commitments (the “Increase Effective Date”), request that the Banks increase their Commitments. Each Bank shall, by notice to HoldCo and warranty is qualified the Agent given not later than 15 days following receipt of HoldCo’s request, advise HoldCo whether or not it will increase its Commitments as of the Increase Effective Date. Any Bank that has not so advised HoldCo and the Agent by materiality or reference to Material Adverse Effect, in which case, such representation and warranty day shall be true and correct deemed to have declined to agree to such increase in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans Commitment. The decision to increase its Commitment hereunder shall be used for general corporate purposes of at the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case sole discretion of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Bank.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $25,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such increase the sum of the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 750,000,000 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 requested increase in the total aggregate amount for each Incremental Loan Commitment (Commitments and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such increase is requested to become effective. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the Administrative Agent, either agree to provide increase its Commitment (each Lender so agreeing being an Incremental Loan “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice shall be deemed to have declined to increase its Commitment). The Company may also arrange for one or more banks or other financial institutions (any such Person, bank or other financial institution referred to in this clause (a) being called an “Incremental Augmenting Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of , which may include any Incremental Loan Commitment may elect or decline, in its sole discretionLender, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Dateextend Commitments or increase their existing Commitments; provided that:
(A) no Default or Event that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent (which approval shall not be unreasonably withheld) and the Lenders Company and each Augmenting Lender shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), execute all such documentation as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any increase in the case of each Incremental Revolving Credit Increase (total Commitments may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company.
Appears in 1 contract
Sources: Credit Agreement (Hubbell Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Company may on a single occasion, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
total US Tranche Commitments or European Tranche Commitments be increased by an amount not less than $25,000,000 (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more with simultaneous increases in the Revolving US Tranche Commitments (any such and the European Tranche Commitments being deemed to be a single increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan of the increases in the US Tranche Commitments and the European Tranche Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 100,000,000. Such notice shall set forth the amount of the requested increase in the total aggregate amount for each Incremental Loan Commitment (US Tranche Commitments or European Tranche Commitments, as the case may be, and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 on which such notice is delivered of the Company's notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect 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 declinedeemed to have declined being a "Non-Increasing Lender"). In the event that, in its sole discretionon the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the Borrower a Pro Forma Compliance Certificate demonstratingpreceding 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 being called an "Augmenting Lender"), which may include any Lender, to extend 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 form and substance reasonably satisfactory an aggregate amount equal to the Administrative Agentunsubscribed amount; provided that each Augmenting Lender, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)if not already a Lender hereunder, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Issuing Bank and the Borrower, but will Swingline Lender (which approval shall not in any event have a shorter weighted average life to maturity than be unreasonably withheld) and the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan Borrowers and except each Augmenting Lender shall execute all such documentation as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and shall reasonably specify to evidence the Borrower;
(G) Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the total US Tranche Commitments or European Tranche Commitments, as the case of each Incremental Revolving Credit Increase (may be, may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $50,000,000; provided that, without the prior written consent of all of the Lenders, (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that sum of (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Aggregate Commitment and (2) the making Five-Year Aggregate Commitment shall at no time exceed $400,000,000 minus the aggregate amount of all reductions in (x) the Aggregate Commitment previously made pursuant to Section 2.5(A) and (y) in the Five-Year Aggregate Commitment previously made in accordance with and pursuant to the relevant provisions of the Five-Year Credit Agreement; (b) the Company shall not make any Incremental Loans such request during the six month period following any reduction in the Aggregate Commitment previously made pursuant thereto;
to Section 2.5(A); (Bc) the Company shall not be entitled to make more than one such request during any calendar year; and (d) each such request shall be in a minimum amount of at least $25,000,000 and increments of $1,000,000 in excess thereof. Such request shall be made in a written notice given to the Administrative Agent and the Lenders shall have received from by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory Company not less than twenty (20) Business Days prior to the Administrative Agentproposed effective date of such increase, that which notice (a "Commitment Increase Notice") shall specify the Borrower is amount of the proposed increase in compliance with the financial covenants set forth in Section 7.10 based on Aggregate Commitment and the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)proposed effective date of such increase. In the event of such a Commitment Increase Notice, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 Lenders shall be true and correct given the opportunity to participate in all material respects, except the requested increase ratably in proportions that their respective Commitments bear to the extent Aggregate Commitment. No Lender shall have any such representation and warranty obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date fifteen (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D15) the proceeds of any Incremental Loans shall be used for general corporate purposes Business Days after receipt of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) Commitment Increase Notice, each Incremental Loan Commitment (and the Incremental Loans made thereunder) Lender shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory submit to the Administrative Agent and a notice indicating the Borrower;
maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (Gany 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) in the case of each Incremental Revolving Credit Increase (the terms of which 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 a the Lender joinder agreement):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
Appears in 1 contract
Increase in Commitments. (a) At any time following During the Closing DateRevolving Credit Period, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request at any time or from time to time that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)be increased; provided that (1i) the total aggregate principal amount for of all such Incremental Loan Commitments increases pursuant to this Section shall not (as of any date of incurrence thereof) exceed $250,000,000 125,000,000, (ii) the Borrower shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount, and (2iii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declineBank, in its sole discretion, may either (A) agree to provide such Incremental Loan increase its Commitment by all or a portion of the offered amount or (B) decline to increase its Commitment. Any Incremental Loan Commitment 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 Banks shall have agreed to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Bank”), which may include any Bank, to extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that (i) each Augmenting Bank, if not already a Bank hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld) and (ii) each Augmenting Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Agent a duly executed accession agreement in a form satisfactory to the Agent and the Borrower. Increases and new Commitments created pursuant to this paragraph (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in clauses (Ab) no Default or Event and (d) of Default Section 3.02 shall exist be satisfied (as though a Borrowing were being made on such Increased Amount Date before or date) and the Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the Borrower, and (ii) the Agent shall have received (to the extent requested by the Agent reasonably in advance of such date) documents consistent with those delivered under clauses (c) and (d) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):increase.
Appears in 1 contract
Sources: Credit Agreement (Aetna Inc /Pa/)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request that the establishment of:
(i) one or more incremental term loan commitments (total Commitments be increased by an amount not less than $25,000,000 for any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one increase and not greater than $250,000,000 minus the aggregate amount of prior or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more simultaneous increases in of the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with and the Incremental Term Loans, 364-Day Agreement. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 20 days after the date of the Borrower's notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide by all or a portion of the offered amount (each Bank so agreeing being an "INCREASING BANK") or decline to increase its Commitment (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution referred to in this paragraph (a) being called an "AUGMENTING BANK"), in its sole discretionwhich may include any Bank, to provide extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting 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 each Augmenting Bank shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Bank hereunder. Any Incremental Loan Commitment Increases and new Commitments created pursuant to this paragraph (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in paragraphs (Ab) no Default or Event and (c) of Default Section 3.02 shall exist on be satisfied and the Administrative Agent shall have received a certificate to that effect dated such Increased Amount Date before or date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Banks) documents consistent with those delivered under clauses (b) and (c) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the total Commitments pursuant to paragraph (a) above (the "COMMITMENT INCREASE"), (i) the aggregate principal amount of the Loans outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) any Incremental Loan such Bank's Applicable Percentage (calculated after giving effect to the Commitment and Increase) multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that shall not have been a Bank prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (on a pro forma basis2) to (x) any Incremental Loan Commitmentthe amount of the Subsequent Borrowings, (yiv) after the making of any Incremental Loans pursuant thereto Administrative Agent receives the funds specified in clauses (with any Incremental Loan Commitment being deemed to be fully fundedii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Non- Increasing Bank the portion of such funds that is equal to the difference between (CA) each the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the representations Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non-Increasing Bank's Applicable 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 true and correct deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in all material respects, except an aggregate principal amount equal to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes aggregate principal amount of the Borrower Initial Loans in the currency or currencies, and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower types and shall be secured and guaranteed with for the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity Notice of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing delivered to the Administrative Agent in accordance with Section 2.02, (vi) each Non-Increasing Bank, each Increasing Bank and the Borrower;
(G) in the case each Augmenting Bank shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms of which Commitment Increase) and (vii) the Borrower shall be set forth in a Lender joinder agreement):pay each Increasing Bank and each Non-Increasing Bank any and all accrued but unpaid interest on the Initial Loans.
Appears in 1 contract
Increase in Commitments. (a) At any time following after the Closing Effective Date until the third anniversary of the Effective Date, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request at any time or from time to time that the establishment of:
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 incremental term loan commitments banks or other financial institutions (any such incremental term loan commitmentbank or other financial institution being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase its existing Commitment in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the 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 approvals shall not be unreasonably withheld or delayed). Any such additional Term Advances shall be deemed an “Incremental Term Loan CommitmentAdvance”) , any such commitment to make one or more term loans (any such additional term loans, Incremental Term Advances shall be deemed an “Incremental Term LoanAdvance Commitment”); or
(ii) one , and the aggregate amount thereof agreed to be provided by the applicable Lenders or more increases in the Augmenting Lenders shall be an “Incremental Term Advance Commitment Amount”. Any such additional Revolving Advance Commitments (any such increase, shall be deemed an “Incremental Revolving Commitment” and, together with and the Incremental Term Loan Commitments, aggregate amount thereof agreed to be provided by the applicable Lenders or Augmenting Lenders shall be the “Incremental Loan CommitmentsRevolving Advance Commitment Amount.”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):
Appears in 1 contract
Sources: Credit Agreement (Supervalu Inc)
Increase in Commitments. (a) At any time following the Closing DateProvided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may from time to time, subsequent to the Amendment No. 3 Effective Date, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Aggregate Commitments (any such increase, by an “Incremental Revolving Commitment” and, together aggregate amount not exceeding $300 million either by having a Lender increase its Commitment then in effect or by adding as a Lender with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)a new Commitment hereunder a Person which is not then a Lender; provided that (1i) any such request for an increase shall be in a minimum amount of $10 million, except in the total aggregate principal amount case of the final request, which may be for all the entire remaining amount, (ii) ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may make a maximum of five such Incremental Loan Commitments shall not requests, and (as 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 date request for increases in the Commitment of incurrence thereof) exceed $250,000,000 and any existing Lender, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International (2) in consultation with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunderAdministrative Agent) shall not specify the time period within which each Lender is requested to respond (which shall in no event be less than a minimum principal amount ten Business Days from the date of $10,000,000 or, if less, the remaining amount permitted pursuant delivery of such notice to the foregoing clause (1Lenders). Each Lender shall notify the Administrative Agent within such notice shall specify the date (eachtime period whether or not it agrees to increase its Commitment or extend incremental term loans and, if so, whether by an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered deemed to Administrative Agenthave declined to increase its Commitment or extend incremental term loans hereunder. The Borrower Administrative Agent shall notify ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International and each Lender of the Lenders’ responses to each request made hereunder. ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may also invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably additional Eligible Assignees satisfactory to the Administrative Agent, Agent (acting reasonably) to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached become Lenders pursuant to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, joinder agreement in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International, the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered Agent and their respective counsel. Any new Lender becoming a party hereto pursuant to this Section 7.1(a2.15 shall (1) or 7.1(b), execute such documents and agreements as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) Administrative Agent may reasonably request and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F2) in the case of each Incremental Term Loan (any Lender that is organized under the terms laws of which shall be set forth in a Lender joinder agreement)jurisdiction outside of the United States of America, such Incremental Term Loan will mature and amortize in a manner reasonably acceptable provide to the Administrative Agent, the Incremental Lenders making its name, address, tax identification number and/or such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except other information as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Mettler Toledo International Inc/)
Increase in Commitments. (a) At any time following the Closing Date, the Borrower The Company may by written notice to the Administrative Agent elect to request (x) prior to the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitmentMaturity Date for the Revolving Credit Facility, an “Incremental Term Loan Commitment”) increase to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the existing Revolving Credit Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increaseeach, an “Incremental Revolving Credit Increase” andCommitment”) and/or (y) the establishment of one or more new term loan commitments (each, together with the an “Incremental Term Loans, the “Incremental Loans Commitment”); provided that (1) the total , by an aggregate principal amount for all such Incremental Loan Revolving Credit Commitments shall and Incremental Term Commitments that when combined with the aggregate outstanding principal amount of Additional Pari Passu Debt will not (as of any date of incurrence thereof) exceed the Dollar Equivalent of $250,000,000 and (2) 250,000,000, or, if greater, an amount equal to the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, additional Indebtedness that would cause the remaining amount permitted pursuant Consolidated Total Net Leverage Ratio as of the four (4) consecutive fiscal quarter period most recently ended prior to the foregoing clause incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (1assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 3.25 to 1.00. Each such notice shall specify (i) the date (each, an “Increased Amount Increase Effective Date”) on which the Borrower Company proposes that any the Incremental Loan Commitment Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, Agent and (ii) the identity of each Eligible Assignee to provide an whom the Company proposes any portion of such Incremental Loan Commitment (Commitments be allocated and the amounts of such allocations; provided that any such Person, an “Incremental Lender”). Any proposed Incremental existing Lender offered or approached to provide all or a portion of any the Incremental Loan Commitment Commitments may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Each Incremental Loan Commitment shall become effective as be in an aggregate amount of the Dollar Equivalent of $100,000,000 or any whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof (provided that such Increased Amount Date; provided that:
(A) no Default or Event amount may be less than the Dollar Equivalent of Default shall exist on $100,000,000 if such Increased Amount Date before or after giving effect to (1) any amount represents all remaining availability under the aggregate limit in respect of Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants Commitments set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(babove), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):.
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Increase in Commitments. (a) At The Parent shall have the right, at any time following and from time to time after the Closing Date, the Borrower may Effective Date by written notice to and in consultation with the Administrative Agent elect Agent, to request an increase in the establishment of:
aggregate Commitments (i) each such requested increase, a “Commitment Increase”), by having one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases existing Banks increase their respective Commitments then in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date effect (each, an “Increased Amount DateIncreasing Bank”), by adding as a Bank with a new Commitment hereunder one or more Persons that are not already Banks (each, an “Additional Bank”), or a combination thereof; provided that (i) on which the Borrower proposes that any Incremental Loan such request for a Commitment Increase shall be effectivein a minimum amount of $25,000,000 or, which unless the Administrative Agent otherwise consents, a higher integral 48 multiple of $5,000,000, (ii) immediately after giving effect to any Commitment Increase, the aggregate of all Commitment Increases effected after the Effective Date shall not exceed $500,000,000, and (iii) no existing Bank shall be obligated to increase its Commitment as a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate result of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory request for a Commitment Increase by the Parent unless it agrees in its sole discretion to do so.
(b) Each Additional Bank must qualify as an Eligible Assignee (the approval of which by the Administrative Agent, to provide each Fronting Bank that has Issued an Incremental Loan Commitment (any outstanding Letter of Credit and the Swingline Bank shall not be unreasonably withheld, conditioned or delayed) and the Parent and each Additional Bank shall execute a joinder agreement together with all such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective other documentation as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingmay reasonably require, all in form and substance reasonably satisfactory to the Administrative Agent, that to evidence the Borrower Commitment of such Additional Bank and its status as a Bank hereunder.
(c) If the aggregate Commitments are increased in accordance with this Section, (i) the Parent shall determine the final amount and allocation of such increase and (ii) the Administrative Agent and the Parent shall determine the effective date (the “Commitment Increase Date,” which shall be a Business Day not less than 30 days prior to the Maturity Date) of such increase. The Administrative Agent shall promptly notify the Parent and the Banks of the final amount and allocation of such increase and the Commitment Increase Date. The Administrative Agent is in compliance with hereby authorized, on behalf of the financial covenants Banks, to enter into any amendments to this Agreement and the other Loan Documents as the Administrative Agent shall reasonably deem appropriate to effect such Commitment Increase.
(d) Notwithstanding anything set forth in this Section 7.10 based on 2.19 to the financial statements most recently delivered contrary, no increase in the aggregate Commitments pursuant to this Section 2.19 shall be effective unless:
(i) The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Bank, evidence of its agreement to provide a portion of the Commitment Increase, and as to each Additional Bank, a duly executed joinder agreement together with all other documentation required by the Administrative Agent pursuant to Section 7.1(a2.19(b);
(B) or 7.1(b)an instrument, as applicableduly executed by each Borrower, both before acknowledging and after giving effect (on a pro forma basis) to (x) any Incremental reaffirming its obligations under this Agreement and the other Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewithDocuments;
(C) each unless covered by resolutions previously delivered hereunder, a certificate of the secretary or an assistant secretary or other appropriate officer of each Borrower, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such Borrower approving or consenting to such Commitment Increase;
(D) a certificate of a Responsible Officer, certifying that (y) as of the Commitment Increase Date, all representations and warranties of the Borrowers contained in Section 6 shall be this Agreement and the other Loan 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 (except to the extent any such representation and or warranty is qualified by materiality or reference expressly stated to Material Adverse Effecthave been made as of a specific date, in which case, case such representation or warranty is true and warranty shall be correct (if qualified as to materiality) or true and correct in all respectsmaterial respects (if not so qualified), on such Increased Amount Date with the same effect as if made on and in each case as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase; and
(Dii) If there is a non-ratable increase in the proceeds aggregate Commitments, each outstanding Syndicated Letter of any Incremental Loans Credit shall be used for general corporate purposes have been amended giving effect to the reallocation of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) Commitments or, if required, returned by each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory respective beneficiary to the Administrative Agent and cancelled and/or exchanged for a new or amended Syndicated Letter of Credit giving effect to the Borrower;reallocated Commitments; and
(Giii) in In the case of each Incremental Revolving any Credit Increase (Extension in connection with such Commitment Increase, the terms of which shall be conditions precedent set forth in Section 4.02 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 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 Lender joinder agreement):Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Bank shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated after giving effect to the Commitment Increase) of the Subsequent Borrowings and (z) such Bank’s Pro Rata Share (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 Bank the portion of such funds equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Bank’s Pro Rata Share (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Banks shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitment (calculated after giving effect to the Commitment Increase), (vi) each applicable Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Banks entitled thereto, and (vii) Schedule I shall automatically be amended to reflect the Commitments of all Banks 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. Notwithstanding the foregoing, the Parent and the Administrative Agent may agree upon other methods of implementing a Commitment Increase (including a phase-in of a Commitment Increase with certain Banks having temporary risk participations in outstanding Revolving Loans pending the end of Interest Periods for LIBOR Loans) so long as the applicable method is not materially disadvantageous to any Bank.
Appears in 1 contract
Sources: Credit Agreement (ACE LTD)
Increase in Commitments. (a) At any time following Borrower shall have the Closing Dateright exercisable 5 times, the Borrower may by written upon at least 10 Business Days’ notice to the Administrative Agent elect and the Lenders, to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments or (ii) the making of additional Term Loans (the “Additional Term Loans”) by up to $500,000,000 to a maximum aggregate amount not to exceed $1,600,000,000 (reduced to the extent Borrower has terminated or reduced the Revolving Commitments) by either adding new lenders as Lenders (subject to the Administrative Agent’s prior written approval of the identity of any such increase, new lender if it is not an “Incremental Revolving Commitment” and, together with Eligible Assignee) or obtaining the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effectiveagreement, which shall be a date not less than ten (10) Business Days after the date on which at such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered ’s or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its Lenders’ sole discretion, of one or more of the then current Lenders to provide increase its or their Revolving Commitments or to make Additional Term Loans. Each such Incremental Loan Commitmentincrease in the Commitments or the making of Additional Term Loans must be an aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof. Any Incremental Loan Commitment shall become effective as Such increases may be increases in Revolving Commitments or the making of such Increased Amount Date; provided that:
Additional Term Loans or a combination thereof. Effecting any increase of the Revolving Commitments or the making of Additional Term Loans under this Section is subject to the following conditions precedent: (Ax) no Default or Event Unmatured Default has occurred, is then continuing or shall be in existence on the effective date of Default shall exist on such Increased Amount Date before increase of Revolving Commitments or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan CommitmentAdditional Term Loans, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties (subject in all cases to all materiality qualifiers and other exceptions in such representations and warranties) contained in Section 6 Article V shall be true and correct in all material respectsas of the effective date of such increase, except to the extent any such representation and or warranty is qualified by materiality or reference stated to Material Adverse Effect, relate solely to an earlier date (in which case, case such representation and or warranty shall be have been true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (earlier date) and except for any such representation changes in factual circumstances not prohibited under the Loan Documents, and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(Dz) the proceeds of any Incremental Loans Administrative Agent shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and have received an Amendment Regarding Increase by the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
new lender or existing Lender providing such increase of Revolving Commitments or Additional Term Loans, a copy of which shall be forwarded to each Lender by the Administrative Agent promptly after execution thereof and all documentation and opinions as the Administrative Agent may reasonably request, in form and substance satisfactory to the Administrative Agent. In no event will any existing Lender be obligated to provide any portion of any such increase of Revolving Commitments or making of Additional Term Loans unless such Lender shall specifically agree in writing to provide such increase of Revolving Commitments or making of Additional Term Loans at such time. On the effective date of any such increase of Revolving Commitments or making of Additional Term Loans, Borrower shall pay to the institutions arranging such increases such fees as may be agreed to by such institutions and the Borrower and to each new lender or then-current Lender providing such increase of Revolving Commitments or making Additional Term Loans the up-front fee agreed to between Borrower and such party. In addition, the Subsidiary Guarantors, if any, shall execute a consent to such increase of Revolving Commitments or making of Additional Term Loans ratifying and continuing their obligations under the Subsidiary Guaranty. If a Person becomes a new Lender having a Revolving Commitment under this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (G) or in the case of each Incremental an existing Revolving Credit Increase Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the terms other Revolving Lenders its Revolving Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2A.6(b) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Lenders agree to cooperate in any required sale and purchase of outstanding Revolving Advances to achieve such result. In no event shall the aggregate Commitments and Term Loans exceed $1,600,000,000 without the approval of all Lenders which shall be set forth in a Lender joinder agreement):are not then Defaulting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Retail Properties of America, Inc.)
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one total US Tranche Commitments, Swiss Tranche Commitments or more incremental term loan commitments (any such incremental term loan commitment, Japanese Tranche Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $25,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such increase the sum of the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 750,000,000. Such notice shall set forth the amount of the requested increase in the total aggregate amount for each Incremental Loan Commitment (US Tranche Commitments, Swiss Tranche Commitments or Japanese Tranche Commitments, as the case may be, and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 on which such notice is delivered of the Company’s notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect 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 declinedeemed to have declined being a “Non-Increasing Lender”). In the event that, in its sole discretionon the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the Borrower a Pro Forma Compliance Certificate demonstratingpreceding 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 being called an “Augmenting Lender”), which may include any Lender, to extend 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 form and substance reasonably satisfactory an aggregate amount equal to the Administrative Agentunsubscribed amount; provided that each Augmenting Lender, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)if not already a Lender hereunder, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower;
(G) 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 of each Incremental Revolving Credit Increase (may be, may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Five Year Credit Agreement (Edwards Lifesciences Corp)
Increase in Commitments. (a) At any time following During the Closing DateRevolving Credit Period, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request at any time or from time to time that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)be increased; provided that (1i) the total aggregate principal amount for of all such Incremental Loan Commitments increases pursuant to this Section shall not (as of any date of incurrence thereof) exceed $250,000,000 75,000,000, (ii) the Borrower shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount, and (2iii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declineBank, in its sole discretion, may either (A) agree to provide such Incremental Loan increase its Commitment by all or a portion of the offered amount or (B) decline to increase its Commitment. Any Incremental Loan Commitment 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 Banks shall have agreed to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Bank”), which may include any Bank, to extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that (i) each Augmenting Bank, if not already a Bank hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld) and (ii) each Augmenting Bank, if not already a Bank hereunder, shall become a party to this Agreement by completing and delivering to the Agent a duly executed accession agreement in a form satisfactory to the Agent and the Borrower. Increases and new Commitments created pursuant to this paragraph (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in clauses (Ab) no Default or Event and (d) of Default Section 3.02 shall exist be satisfied (as though a Borrowing were being made on such Increased Amount Date before or date) and the Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the Borrower, and (ii) the Agent shall have received (to the extent requested by the Agent reasonably in advance of such date) documents consistent with those delivered under clauses (c) and (d) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):increase.
Appears in 1 contract
Sources: Credit Agreement (Aetna Inc /Pa/)
Increase in Commitments. (a) At any time following Borrower shall have the Closing Dateright exercisable 5 times, the Borrower may by written upon at least 10 Business Days’ notice to the Administrative Agent elect and the Lenders, to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments or (ii) the making of additional Term Loans (the “Additional Term Loans”) by up to $750,000,000 to a maximum aggregate amount not to exceed $1,600,000,000 (reduced to the extent Borrower has terminated or reduced the Revolving Commitments) by either adding new lenders as Lenders (subject to the Administrative Agent’s prior written approval of the identity of any such increase, new lender if it is not an “Incremental Revolving Commitment” and, together with Eligible Assignee) or obtaining the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effectiveagreement, which shall be a date not less than ten (10) Business Days after the date on which at such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered ’s or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its Lenders’ sole discretion, of one or more of the then current Lenders to provide increase its or their Revolving Commitments or to make Additional Term Loans. Each such Incremental Loan Commitmentincrease in the Commitments or the making of Additional Term Loans must be an aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof. Any Incremental Loan Commitment shall become effective as Such increases may be increases in Revolving Commitments or the making of such Increased Amount Date; provided that:
Additional Term Loans or a combination thereof. Effecting any increase of the Revolving Commitments or the making of Additional Term Loans under this Section is subject to the following conditions precedent: (Ax) no Default or Event Unmatured Default has occurred, is then continuing or shall be in existence on the effective date of Default shall exist on such Increased Amount Date before increase of Revolving Commitments or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan CommitmentAdditional Term Loans, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties (subject in all cases to all materiality qualifiers and other exceptions in such representations and warranties) contained in Section 6 Article V shall be true and correct in all material respectsas of the effective date of such increase, except to the extent any such representation and or warranty is qualified by materiality or reference stated to Material Adverse Effect, relate solely to an earlier date (in which case, case such representation and or warranty shall be have been true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (earlier date) and except for any such representation changes in factual circumstances not prohibited under the Loan Documents, and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(Dz) the proceeds of any Incremental Loans Administrative Agent shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and have received an Amendment Regarding Increase by the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
new lender or existing Lender providing such increase of Revolving Commitments or Additional Term Loans, a copy of which shall be forwarded to each Lender by the Administrative Agent promptly after execution thereof and all documentation and opinions as the Administrative Agent may reasonably request, in form and substance satisfactory to the Administrative Agent. In no event will any existing Lender be obligated to provide any portion of any such increase of Revolving Commitments or making of Additional Term Loans unless such Lender shall specifically agree in writing to provide such increase of Revolving Commitments or making of Additional Term Loans at such time. On the effective date of any such increase of Revolving Commitments or making of Additional Term Loans, Borrower shall pay to the institutions arranging such increases such fees as may be agreed to by such institutions and the Borrower and to each new lender or then-current Lender providing such increase of Revolving Commitments or making Additional Term Loans the up-front fee agreed to between Borrower and such party. In addition, the Subsidiary Guarantors, if any, shall execute a consent to such increase of Revolving Commitments or making of Additional Term Loans ratifying and continuing their obligations under the Subsidiary Guaranty. If a Person becomes a new Lender having a Revolving Commitment under this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (G) or in the case of each Incremental an existing Revolving Credit Increase Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the terms other Revolving Lenders its Revolving Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2A.6(b) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Lenders agree to cooperate in any required sale and purchase of outstanding Revolving Advances to achieve such result. In no event shall the aggregate Commitments and Term Loans exceed $1,600,000,000 without the approval of all Lenders which shall be set forth in a Lender joinder agreement):are not then Defaulting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Retail Properties of America, Inc.)
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided Provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist then exist, upon notice to, and with the consent of, the Administrative Agent (not to be unreasonably withheld), the Borrower may from time to time increase the Aggregate Commitment Amount by (i) requesting that one or more Lenders increase its or their respective Commitments or (ii) inviting one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments hereunder, provided that, in either case, the Borrower shall not exercise its rights under this Section 2.04 on more than three separate occasions and the minimum amount by which the Aggregate Commitment Amount shall be increased shall not be less than $75,000,000 (unless the excess of the Maximum Commitment Amount over the Aggregate Commitment Amount in effect immediately prior to any such Increased increase in Commitments is less than $75,000,000, in which case the Borrower may request an increase in the amount of such excess), and further provided that the Aggregate Commitment Amount Date before or after giving effect to any such increase shall not exceed the Maximum Commitment Amount. For the avoidance of doubt, it is agreed that the Administrative Agent may withhold its consent to the Borrower’s exercise of the foregoing right as to any particular existing Lender or additional Lender based on the amount of the requested increase in such existing Lender’s or additional Lender’s Commitment or the Administrative Agent’s assessment of the credit worthiness of such existing Lender or additional Lender.
(1b) If the Borrower has requested that all of the Lenders increase their respective Commitments pro rata, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond to such request (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within the specified time period whether or not such Lender agrees to increase its respective Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase in the Aggregate Commitment Amount (based on the Aggregate Commitment Amount then in effect). Any Lender not responding within such specified time period shall be deemed to have declined to increase its respective Commitment. Anything herein contained to the contrary notwithstanding, no Lender shall have any Incremental Loan obligation whatsoever to increase its respective Commitment hereunder and (2) the making Borrower shall have no obligation to request a pro rata increase in the Commitments of all Lenders or to offer to increase the Commitment of any Incremental Loans particular Lender. The consent of the Lenders shall not be required in order for any Lender to increase its Commitment or for one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments pursuant thereto;to this Section 2.04.
(Bc) If the Aggregate Commitment Amount is increased in accordance with this Section 2.04, the Administrative Agent and the Lenders Borrower shall have received from determine the effective date of such increase (the “Additional Commitment Effective Date”). The Administrative Agent and the Borrower a Pro Forma Compliance Certificate demonstratingshall promptly notify the Lenders of the final allocation of such increase and the Additional Commitment Effective Date. Each existing Lender that increases its Commitment and each additional Lender, in form if any, and substance reasonably satisfactory the Borrower shall execute and deliver to the Administrative AgentAgent (which the Administrative Agent shall also execute to acknowledge its acceptance thereof) a certificate substantially in the form of Exhibit C hereto (an “Additional Commitment Certificate”). Upon receipt by the Administrative Agent of Additional Commitment Certificates from existing Lenders or additional Lenders, that if any, in an amount sufficient to effectuate the increase requested by the Borrower: (1) the Aggregate Commitment Amount shall be increased, (2) the Administrative Agent shall amend and distribute to the Borrower is in compliance with and the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) Lenders a revised Schedule 2.01 adding or 7.1(b)amending, as applicable, both the Commitment(s) of any Lender executing the Additional Commitment Certificate and the increased Aggregate Commitment Amount (which shall be deemed incorporated into, and made a part of, this Agreement), (3) each additional Lender shall be deemed to be a party in all respects as of the Additional Commitment Effective Date to this Agreement and the other Loan Documents to which the Lenders are party and (4) upon the Additional Commitment Effective Date, any increasing or additional Lender party to the Additional Commitment Certificate shall purchase from each of the (other) Lenders party to the Agreement immediately prior to the Additional Commitment Effective Date a pro rata portion of all outstanding Loans (and participation interests in Letters of Credit) of each such (other) Lender such that each Lender (including any additional Lender, if any) shall hold its ratable share of all outstanding Loans (and participation interests in Letters of Credit) after giving effect to its increased or additional Commitment and the resulting increase in the Aggregate Commitment Amount, provided that the Borrower shall pay any amounts due under Section 2.16 to the extent that any such purchase gives rise to the costs indemnified thereby, and any other amounts due under Section 9.03.
(d) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitment Effective Date (in sufficient copies for each Lender) signed by an officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, (ii) including a certificate of the type described in Section 5.01(c) demonstrating pro forma compliance with Section 6.09 after giving effect to such increase and (iii) certifying that, before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article III are true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of the Additional Commitment Effective Date and no Default or Event of Default exists. The Borrower shall execute and deliver replacement Notes if requested in accordance with Section 2.10(e) reflecting such date (except for any such representation and warranty that by its terms is made only Lender’s Commitment, which Notes shall be dated as of an earlier date, which representation and warranty shall remain true and correct as the date of such earlier date);this Agreement.
(De) the proceeds of This Section shall supersede any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) provision in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Section 9.02 to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request that the establishment of:
(i) one or more incremental term loan commitments (total Commitments be increased by an amount not less than $25,000,000 for any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one increase and not greater than $250,000,000 minus the aggregate amount of prior or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more simultaneous increases in of the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with and the Incremental Term Loans, Multi-Year Agreement. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 20 days after the date of the Borrower's notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide by all or a portion of the offered amount (each Bank so agreeing being an "INCREASING BANK") or decline to increase its Commitment (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution referred to in this paragraph (a) being called an "AUGMENTING BANK"), in its sole discretionwhich may include any Bank, to provide extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting 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 each Augmenting Bank shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Bank hereunder. Any Incremental Loan Commitment Increases and new Commitments created pursuant to this paragraph (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in paragraphs (Ab) no Default or Event and (c) of Default Section 3.02 shall exist on be satisfied and the Administrative Agent shall have received a certificate to that effect dated such Increased Amount Date before or date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Banks) documents consistent with those delivered under clauses (b) and (c) of Section 3.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the total Commitments pursuant to paragraph (a) above (the "COMMITMENT INCREASE"), (i) the aggregate principal amount of the Loans outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) any Incremental Loan such Bank's Applicable Percentage (calculated after giving effect to the Commitment and Increase) multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that shall not have been a Bank prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (on a pro forma basis2) to (x) any Incremental Loan Commitmentthe amount of the Subsequent Borrowings, (yiv) after the making of any Incremental Loans pursuant thereto Administrative Agent receives the funds specified in clauses (with any Incremental Loan Commitment being deemed to be fully fundedii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Non- Increasing Bank the portion of such funds that is equal to the difference between (CA) each the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the representations Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non-Increasing Bank's Applicable 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 true and correct deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in all material respects, except an aggregate principal amount equal to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes aggregate principal amount of the Borrower Initial Loans in the currency or currencies, and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower types and shall be secured and guaranteed with for the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity Notice of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing delivered to the Administrative Agent in accordance with Section 2.02, (vi) each Non-Increasing Bank, each Increasing Bank and the Borrower;
(G) in the case each Augmenting Bank shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms of which shall be set forth in a Lender joinder agreement):Commitment Increase) and
Appears in 1 contract
Increase in Commitments. (a) At any Borrower shall have the right from time following the Closing Dateto time, the Borrower may by written notice to the Administrative Agent elect provided no Default or Unmatured Default has occurred and is then continuing, to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the Term A Loans or, the Term Loans B Loans or the Term C Loans or (ii) the making of additional Term Loans (the “Incremental Loan CommitmentsAdditional Term Loans”) by up to make an additional revolving credit loans under this Agreement $451,00 0,000,000 to a maximum aggregate amount not to exceed $12,25000,000,000 (any such increase, an “Incremental reduced to the extent Borrower has terminated or reduced the Revolving Credit Increase” and, together with the Incremental Term LoansCommitments, the “Incremental Term A Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant Term B Loans or the Term C Loans) by either adding new lenders as Lenders (subject to the foregoing clause (1). Each Administrative Agent’s prior written approval of the identity of such notice shall specify new lenders) or obtaining the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effectiveagreement, which shall be a date not less than ten (10) Business Days after the date on which at such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered ’s or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its Lenders’ sole discretion, of one or more of the then current Lenders to provide increase its or their Revolving Commitments, Term A Loans or Term B Loans, Term C Loans or to make Additional Term Loans. Each such Incremental Loan Commitmentincrease in the Commitments or the making of Additional Term Loans must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. Any Incremental Loan Commitment shall become effective Each such increase may apply to the Revolving Commitments, Term A Loans, Term B Loans, Term C Loans or the making of Additional Term Loans, or a combination thereof, as may be determined by Borrower and the Lenders providing such increase. Effecting any increase of such Increased Amount Date; provided that:
the Revolving Commitments, the Term A Loans, the Term B Loans, Term C Loans or the making of Additional Term Loans under this Section is subject to the following conditions precedent: (Aw) no Default or Event Unmatured Default has occurred and is then continuing or shall be in existence on the effective date of Default shall exist on such Increased Amount Date before increase of the Revolving Commitments, the Term A Loans, the Term B Loans, Term C Loans or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingAdditional Term Loans, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 Article V shall be true and correct as of the effective date of such increase (except to the extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respectsrespects as of such earlier date, except and (ii) any representation or warranty that is already by its terms qualified as to the extent any such representation and warranty is qualified by materiality or reference to “materiality”, “Material Adverse Effect, in which case, such representation and warranty ” or similar language shall be true and correct in all respectsrespects after giving effect to such qualification, and (iii) the representations and warranties contained in the second sentence of Section 5.4 shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1), (y) on the effective date of any such Increased Amount Date increase, Borrower shall pay to the Administrative Agent any amounts due to it under any applicable fee letter and to each new lender or then-current Lender providing such additional Commitment the up-front fee agreed to between Borrower and such party and (z) with respect to any such increase of Revolving Commitments, Term A Loans or, Term B Loans or Term C Loans, the Administrative Agent shall have received an Amendment Regarding Increase executed by Borrower, theParent Guarantor, the Subsidiary Guarantors, the Administrative Agent and the new lender(s) or existing Lender(s) providing such increase and, with respect to the making of any Additional Term Loans, the Administrative Agent shall have received a Term Loan Amendment executed by ▇▇▇▇▇▇▇▇, the Parent Guarantor, the Subsidiary Guarantors, the Administrative Agent and the new lender(s) or existing Lender(s) providing such Additional Term Loans (a copy of which Amendment Regarding Increase or Term Loan Amendment, as applicable, shall be forwarded to each Lender by the Administrative Agent promptly after execution thereof) and all documentation and opinions as the Administrative Agent may reasonably request, in form and substance satisfactory to the Administrative Agent. In no event will any existing Lender be obligated to provide any portion of any such increase of Revolving Commitments, Term A Loans, Term B Loans, Term C Loans or making of Additional Term Loans unless such Lender shall specifically agree in writing to provide such increase of Revolving Commitments, Term A Loans, Term B Loans, Term C Loans or making of Additional Term Loans at such time. If requested by the Administrative Agent or any Lender, Borrowers shall have delivered, at least two (2) Business Days prior to the effective date of any such increase or Additional Term Loan, to the Administrative Agent (and any such Lender) a completed and executed Beneficial Ownership Certification. In addition, if requested by Administrative Agent, the Parent Guarantor and the Subsidiary Guarantors shall execute a consent to such increase of Revolving Commitments, Term A Loans, Term B Loans, Term C Loans or making of Additional Term Loans ratifying and continuing their obligations under the Guaranty. If a Person becomes a new Lender having a Revolving Commitment under this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Revolving Lenders its Revolving Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same effect as if day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made on by the other Revolving Lenders under Section 2A.6(b) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date (except for any on such representation and warranty that by its terms is made only as portion of an earlier date, which representation and warranty shall remain true and correct as the outstanding principal amount of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Revolving Loans. The Lenders agree to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not cooperate in any required sale and purchase of outstanding Revolving Advances to achieve such result. In no event have a shorter weighted average life to maturity than shall the remaining weighted average life to maturity aggregate Commitments and Term Loans exceed $12,2500 0,000,000 without the approval of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date all Lenders which are not then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Defaulting Lenders.
Appears in 1 contract
Sources: Fourth Amendment to Sixth Amended and Restated Senior Credit Agreement (Terreno Realty Corp)
Increase in Commitments. (a) At The Borrower may at any time following or from time to time after the Closing Effective Date, the Borrower may by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of:
(ix) one or more incremental term loan new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any such incremental term loan commitmentTerm Loan Increase, an the “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LoanLoans”); or
, or (iiy) one or more increases in the amount of the Revolving Commitments (any each such increase, an a “Incremental Revolving Commitment” andCommitment Increase”, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the referred to herein as an “Incremental Loans Facility”); , provided that (1i) at the total aggregate principal amount for all time of each such Incremental Loan Commitments shall not (as request and upon the effectiveness of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment Facility, (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(Ax) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall exist on be continuing at the time of execution of the applicable contract or agreement for such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment acquisition and (2) the making of any Incremental Loans pursuant thereto;
(B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction)), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Lenders Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be 59562397_5 LEGAL_US_E # 113892680.8124105178.14 obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have received from been satisfied, and (vi) the Borrower provision of Incremental Facilities pursuant to this Section 2.23 on a Pro Forma Compliance Certificate demonstratinggiven date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.24.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance reasonably satisfactory to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is in compliance no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the financial covenants applicable interest rate (subject to clause (e) below) and as set forth in Section 7.10 based this clause (b), shall be on the financial statements most recently delivered terms and pursuant to Section 7.1(adocumentation determined by the Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) or 7.1(b), as applicable, both before and after giving effect (may participate on a pro forma basis) to rata basis or less than pro rata basis (x) any Incremental Loan Commitment, but not on a greater than pro rata basis (y) the making except in respect of any Incremental voluntary prepayments of any Class of Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as maturity date than any other Class of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) or in the case of any permitted refinancing thereof)) in any voluntary or mandatory prepayments of Loans hereunder; and (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Incremental Revolving Commitment Increase only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loan (the terms of which shall be set forth in a Lender joinder agreementLoans), such Incremental Term Loan will mature and amortize the Previously Absent Financial Covenant shall only be required to be included in a manner reasonably acceptable to this Agreement for the Administrative Agent, benefit of Revolving Loans); provided that (x) the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any the Incremental Term Loan Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Term Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent Agent; provided, further, that (x) any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an agreement other than this 59562397_5 LEGAL_US_E # 113892680.8124105178.14 Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Borrower;
(G) Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement 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 reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving CreditCommitment Increase Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment Increase shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving CreditCommitment Increase Lender shall become a Lender with respect to the terms of which Incremental Revolving Credit 59562397_5 LEGAL_US_E # 113892680.8124105178.14 CommitmentsCommitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
(e) The All-In Yield applicable to the Incremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental FacilityTerm Loans, the All-In Yield applicable to such Incremental FacilityTerm Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Term Loans to equal the All-In Yield then applicable to the Incremental FacilityTerm Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Lender joinder agreement):Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in this clause (f), such Incremental Equivalent Debt shall have covenants and de
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders of the applicable Class), request that the establishment of:
(i) one Tranche A Commitments or the Tranche B Commitments be increased; provided that the total Commitments shall not be increased by more incremental than US$500,000,000 during the term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) of this Agreement pursuant to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases this Section. Such notice shall set forth the amount of the requested increase in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan total Commitments, the “Incremental Loan Commitments”) Class to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 be so increased and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 of such Class the opportunity to increase its Commitment of such Class by its Applicable Percentage of the proposed increased amount. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the Administrative AgentAgent given not more than 10 days after the date of the Company’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide of the applicable Class by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment of the applicable Class (and any Incremental Loan Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment of such Class). 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 of the applicable Class shall have agreed pursuant to the preceding sentence to increase their Commitments of such Class by an aggregate amount less than the increase in the total Commitments of such Class requested by the Company, the Company may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as extend Commitments of such Increased Amount DateClass or increase their existing Commitments of such Class in an aggregate amount equal to the unsubscribed amount; provided that:
(A) no Default or Event that each Augmenting Lender, if not already a Lender of Default either Class hereunder, shall exist on such Increased Amount Date before or after giving effect be subject to (1) any Incremental Loan Commitment and (2) the making approval of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant each Issuing Bank and each Swingline Lender (such approvals not to Section 7.1(a) or 7.1(bbe unreasonably withheld), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) Company and each [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] Augmenting Lender shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), execute all such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except documentation as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) shall reasonably specify to evidence its Commitment of such Class and/or its status as a Lender of such Class hereunder. Any increase in the case total Commitments of each Incremental Revolving Credit Increase (either Class may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect in substantially the form of Exhibit “D”, request that the total Commitments be increased by an aggregate amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)exceed $375,000,000; provided that the Borrower may not make more than 3 such requests. Such notice shall set forth the amount of the requested increase (1) the total aggregate principal amount for all such Incremental Loan Commitments which shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than in a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”100,000,000 and in minimum increments of $5,000,000 above that amount) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice is delivered and which, in any event, must be on or prior to Administrative Agentthe Commitment Termination Date). The Borrower may invite any Lender, any Affiliate Upon the receipt of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to such request by the Administrative Agent, the Administrative Agent shall give notice promptly to provide an Incremental Loan each Bank substantially in the form of Exhibit “E”, which notice will offer each such Bank the opportunity to increase its Commitment (any by its applicable Pro Rata Share of the proposed increased amount. Each such PersonBank shall, an by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit “Incremental LenderF”). Any proposed Incremental Lender offered or approached , given not more than 10 days after the date of the Administrative Agent’s notice, either agree to provide increase its Commitment by all or a portion of the offered amount (each Bank so agreeing being an “Increasing Bank”) or decline to increase its Commitment (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other entities (any such bank or other entity being called an “Augmenting Bank”), in its sole discretionwhich may include any Bank, to provide extend Bank Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute a joinder substantially in the form of Exhibit “F” or such Incremental Loan Commitmentother documentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any Incremental Loan Commitment such increase 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 Banks. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “G” evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.9, the Accommodations Outstanding (if any) are held by the Banks in accordance with their new applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of the Administrative Agent, following consultation with the Borrower, (i) by requiring the Accommodations Outstanding to be prepaid with the proceeds of a new Accommodation, (ii) by causing Non-Increasing Banks to assign portions of their Accommodations Outstanding to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all principal and interest and fees accrued as to such Accommodations up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.3, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Commitments shall become effective as under this Section 2.9 unless (i) on the date of such Increased Amount Date; provided that:
increase, (A) no Default shall have occurred and be continuing or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment will result from the increase in Commitments as set forth herein and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained made by the Borrower in Section 6 8 shall be true and correct on and as of the date of the increase in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date Commitments with the same force and effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of unless stated to relate solely to an earlier date, in which representation case such representations and warranty warranties shall remain be true and correct in all respects as of such earlier date);
, (Dii) the proceeds of any Incremental Loans Borrower Debt Ratings assigned by S&P, ▇▇▇▇▇’▇ and DBRS to the Index Debt shall be used for general corporate purposes equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Borrower and its Subsidiaries Effective Date (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and after giving effect to the Incremental Loans made thereunder) shall constitute Obligations incurrence of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in Commitment increase or Accommodations, as the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementmay be), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to (iii) the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent shall have received a compliance certificate certifying and the Borrower, but will not showing (in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then reasonable detail and with appropriate calculations and computations in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be respects reasonably satisfactory to the Administrative Agent and Agent) that (A) each of the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (B) on a Lender joinder agreement):historical pro forma basis (after giving effect to the incurrence of the Commitment increase or Accommodations, as the case may be) as of the last day of the most recently completed Six Month Period with respect to which, pursuant to Section 9.1, financial statements have been, or are required to have been, delivered by the Borrower, the Borrower would be in compliance with Section 9.10 as of the last day of such Six Month Period and (iv) the Administrative Agent shall have received all fees to be mutually agreed between the Borrower and the Administrative Agent.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Date, the The Borrower may by written notice to the Administrative Agent elect to request request, prior to the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitmentMaturity Date, an “Incremental Term Loan Commitment”) increase to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving existing Commitments (any such increase, the "New Commitments") by an “Incremental Revolving Commitment” and, together with amount not in excess of U.S.$85,000,000 in the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan aggregate. Such New Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal U.S.$10,000,000 individually (or such lesser amount which shall be approved by Administrative Agent), and shall be in integral multiples of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)U.S.$1,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “"Increased Amount Date”") on which the Borrower proposes that any Incremental Loan Commitment the New Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The , and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a "New Lender") to whom the Borrower may invite proposes any Lender, any Affiliate portion of such New Commitments be allocated and the amounts of such allocations; provided any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment the New Commitments, may elect or decline, in its sole discretion, to provide such Incremental Loan a New Commitment; provided, further, that any New Lender shall be acceptable to the Administrative Agent. Any Incremental Loan Commitment Such New Commitments shall become effective as of such Increased Amount Date; Date; provided that:
that (A1) no Default or Event of Default shall exist on such Increased Amount Date before immediately prior to or after giving effect to (1) any Incremental Loan Commitment and such New Commitments; (2) both immediately prior to and after giving effect to such New Commitments each of the making of any Incremental Loans pursuant thereto;
conditions set forth in Section 4.02 shall be satisfied; (B3) the Administrative Agent and the Lenders Borrower shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is be in compliance with the financial covenants set forth in Section 7.10 based on 7.11 both as of the financial statements last day of the most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before ended fiscal quarter and immediately after giving effect to such New Commitments; (4) the New Commitments shall be effected pursuant to one or more joinder agreements substantially in the form of Exhibit G (a "Joinder Agreement") executed and delivered by the Borrower, the New Lender and Administrative Agent, and each of which shall be recorded in the Register and each New Lender shall be subject to the requirements set forth in Section 3.01; and (5) the Borrower shall deliver or cause to be delivered any legal opinions or other documents of the type specified in Section 4.01 reasonably requested by Administrative Agent in connection with any such New Commitment.
(b) On any Increased Amount Date on a pro forma basis) which New Commitments are effected, subject to (x) any Incremental Loan Commitmentthe satisfaction of the foregoing terms and conditions, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(Ca) each of the representations Lenders shall assign to each of the New Lenders, and warranties contained in Section 6 each of the New Lenders shall be true and correct in all material respectspurchase from each of the Lenders, except to at the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which caseprincipal amount thereof (together with accrued interest), such representation and warranty shall be true and correct interest in all respects, the Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans will be held by existing Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the same effect as if made on and as addition of such date New Commitments to the Commitments, (except b) each New Commitment shall be deemed for any such representation all purposes a Commitment and warranty that by its terms is each Loan made only as of an earlier datethereunder (a "New Loan") shall be deemed, which representation for all purposes, a Loan and warranty (c) each New Lender shall remain true become a Lender with respect to the New Commitment and correct as of such earlier date);all matters relating thereto.
(Dc) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower's notice of each Increased Amount Date and in respect thereof (x) the proceeds New Commitments and the New Lenders, and (y) the respective interests in such Lender's Loans, in each case subject to the assignments contemplated by this Section 2.14. The terms and provisions of any Incremental the New Loans shall be used for general corporate purposes identical to the Loans. Each Joinder Agreement may, without the consent of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (any other Lenders, effect such amendments to this Agreement and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall other Loan Documents as may be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) necessary or appropriate, in the case opinion of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, to effect the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity provisions of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):this Section 2.13.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Atlantica Yield PLC)
Increase in Commitments. (a) At The Borrower may on one occasion at any time following not later than three months prior to the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases amount that will not result in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (exceeding $500,000,000 minus the amount of any such increase, an “Incremental Revolving Credit Increase” and, together with reduction of the Incremental Term Loans, Commitments pursuant to Section 2.08. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 Applicable Percentage of the proposed increased amount. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 30 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect Lender that does not deliver such a notice within such period of 30 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or declinedeemed to have declined being a “Non-Increasing Lender”). In the event that, in its sole discretionon the 30th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Administrative Agent may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Borrower and the Administrative Agent (which approvals shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Pro Forma Compliance Certificate demonstrating, Lender hereunder. Increases and new Commitments created pursuant to this clause (a) shall become effective on the date specified in form and substance reasonably satisfactory the notice delivered by the Borrower pursuant to the Administrative Agentfirst sentence of this paragraph. Notwithstanding the foregoing, that no increase in the Borrower is total Commitments (or in compliance with the financial covenants set forth in Section 7.10 based Commitment of any Lender) shall become effective under this paragraph unless, (i) on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)date of such increase, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained of the Borrower set forth in Section 6 this Agreement shall be true and correct in all material respectsand no Default shall have occurred and be continuing, except and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (c) and (d) of Section 4.01 as to the extent any such representation corporate power and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes authority of the Borrower to borrow hereunder after giving effect to such increase and its Subsidiaries (including Permitted Acquisitions);iii) following any such increase pursuant to this Section, no Lender shall have a Commitment representing more than 30% of the total Commitments.
(Eb) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to Section 2.05(a) (the “Commitment Increase”), (i) the aggregate principal amount of the Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Incremental Loan Commitment (Increasing Lender and the Incremental Loans made thereunder) each Augmenting Lender that shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in have been a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable prior to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan Commitment Increase shall be reasonably satisfactory pay to the Administrative Agent and in same day funds an amount equal to the Borrower;difference between
(GA) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender’s Applicable 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 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 Applicable 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 Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the case aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of which each Eurodollar Loan shall be set forth in a Lender joinder agreement):subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Convergys Corp)
Increase in Commitments. (a) At The Borrower may at any time following or from time to time after the Closing Effective Date, the Borrower may by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of:
(ix) one or more incremental term loan new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any such incremental term loan commitmentTerm Loan Increase, an the “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LoanLoans”); or
, or (iiy) one or more increases in the amount of the Revolving Commitments (any each such increase, an a “Incremental Revolving Commitment” andCommitment Increase”, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the referred to herein as an “Incremental Loans Facility”); , provided that (1i) at the total aggregate principal amount for all time of each such Incremental Loan Commitments shall not (as request and upon the effectiveness of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment Facility, (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(Ax) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall exist on be continuing at the time of execution of the applicable contract or agreement for such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment acquisition and (2) the making of any Incremental Loans pursuant thereto;
(B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be Table of Contents obligated to provide an Incremental Facility as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Lenders Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have received from been satisfied, and (vi) the Borrower provision of Incremental Facilities pursuant to this Section 2.23 on a Pro Forma Compliance Certificate demonstratinggiven date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance ) with respect to security with the financial covenants set forth in Section 7.10 based on existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the financial statements most recently delivered pursuant to Section 7.1(aexisting Term Loans and shall not be secured by assets other than Collateral; (ii) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, mature on such Increased Amount Date with the same effect date and amortize on such schedule as if made on and as of such date (except for any such representation and warranty that each may be agreed by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each the Lenders providing such Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations Term Loan, provided that, as of the Borrower and date of incurrence, no Incremental Term Loan shall be secured and guaranteed with mature earlier than the other Extensions Term Maturity Date and, as of Credit on a pari passu basis;
(F) in the case date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the terms of which shall be applicable interest rate (subject to clause (e) below) and as set forth in a Lender joinder agreementthis clause (b), such shall be on terms and pursuant to documentation determined by the Borrower and the Additional Lenders providing the Incremental Term Loan will mature Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and amortize in a manner reasonably acceptable to (v) may include any Previously Absent Financial Covenant so long as the Administrative AgentAgent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Incremental Lenders making such Incremental Term Loan and Previously Absent Financial Covenant shall only be required to be included in this Agreement for the Borrower, but will not in any event have a shorter weighted average life to maturity than benefit of Revolving Loans); provided that (x) the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to the Incremental Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not consistent with the existing Term Loan Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent Agent; provided, further, that (x) any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes Table of Contents and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Borrower;
(G) Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement 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 reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Increase (the terms of which Commitment shall be set forth in deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving Credit Lender shall become a Lender joinder agreement):with respect to the Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
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Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect in substantially the form of Exhibit “D”, request that the Tranche A Commitments and the Tranche B Commitments be increased by an aggregate amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)exceed $400,000,000; provided that the Borrower may not make more than 3 such requests and each request shall be to increase both Classes of Commitments by an equal amount. Such notice shall set forth the amount of the requested aggregate increase (1) the total aggregate principal amount for all such Incremental Loan Commitments which shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than in a minimum principal aggregate amount of $10,000,000 or100,000,000 and in minimum aggregate increments of $5,000,000 above that amount, if lessin each case, divided equally between the remaining amount permitted pursuant to the foregoing clause (1two Classes). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice is delivered and which, in any event, must be on or prior to Administrative Agentthe then applicable Commitment Termination Dates, provided that no increase in the Commitments may be requested pursuant to this Section 2.9 on or prior to July 1, 2014). The Borrower may invite any Lender, any Affiliate Upon the receipt of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to such request by the Administrative Agent, the Administrative Agent shall give notice promptly to provide an Incremental Loan each Bank substantially in the form of Exhibit “E”, which notice will offer each such Bank the opportunity to increase its Commitment (any of each Class by its applicable Pro Rata Share of the proposed increased amount for such PersonClass. Each such Bank shall, an by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit “Incremental LenderF”). Any proposed Incremental Lender offered or approached , given not more than 10 days after the date of the Administrative Agent’s notice, either agree to provide increase its Commitments by all or a portion (provided such portion is divided equally between the Classes) of the offered amount (each Bank so agreeing being an “Increasing Bank”) or decline to increase such Commitments (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase such Commitments) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). For greater certainty, a Bank may elect only agree to increase both of its Commitments or declinedecline to increase both of its Commitments. In the event that, in its sole discretionon the 10th day after the Administrative Agent shall have delivered a notice pursuant to the third sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Bank”), which may include any Bank, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank shall extend or increase Commitments of each Class by an equal amount, each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute such Incremental Loan Commitmentdocumentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any Incremental Loan Commitment such increase 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 Banks. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “H” evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.9, the Accommodations Outstanding of each Class (if any) are held by the Banks in accordance with their new applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of the Administrative Agent, following consultation with the Borrower, (i) by requiring the Accommodations Outstanding of a Class to be prepaid with the proceeds of a new Accommodation, (ii) by causing Non-Increasing Banks to assign portions of their Accommodations Outstanding of a Class to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all principal and interest and fees accrued as to such Accommodations up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.3, but shall otherwise be without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Commitments shall become effective as under this Section 2.9 unless (i) on the date of such Increased Amount Date; provided that:
increase, (A) no Default shall have occurred and be continuing or Event of Default shall exist on will result from the increase in such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment Commitments as set forth herein and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained made by the Borrower in Section 6 8 shall be true and correct on and as of the date of the increase in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date Commitments with the same force and effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of unless stated to relate solely to an earlier date, in which representation case such representations and warranty warranties shall remain be true and correct in all respects as of such earlier date);
, (Dii) the proceeds of any Incremental Loans Borrower Debt Ratings assigned by S&P, Moody’s and DBRS to the Index Debt shall be used for general corporate purposes equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Borrower and its Subsidiaries Effective Date (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and after giving effect to the Incremental Loans made thereunder) shall constitute Obligations incurrence of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in Commitment increase or Accommodations, as the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementmay be), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to (iii) the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent shall have received a compliance certificate certifying and the Borrower, but will not showing (in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then reasonable detail and with appropriate calculations and computations in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be respects reasonably satisfactory to the Administrative Agent Agent) that (A) each of the conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (B) on a historical pro forma basis (after giving effect to the incurrence of the applicable Commitment increase or Accommodations, as the case may be) as of the last day of the most recently completed Six Month Period with respect to which, pursuant to Section 9.1, financial statements have been, or are required to have been, delivered by the Borrower;
, the Borrower would be in compliance with Section 9.10 as of the last day of such Six Month Period, (Giv) in the case event that a proposed increase in the Commitments pursuant to this Section 2.9 would result in the aggregate amount of each Incremental Revolving Credit Increase the increases in Commitments pursuant to this Section 2.9 exceeding $375,000,000, the Administrative Agent shall have received a written confirmation from HMC that, upon and after the increase in the applicable Commitments, all Accommodations Outstanding and all interest hereunder will constitute “Debt” as such term is used in the HMC Support Agreement together with the certifications provided by the Borrower pursuant to Section 7.2(d) and (v) the terms Administrative Agent shall have received all fees to be mutually agreed between the Borrower and the Administrative Agent.
(d) Notwithstanding anything to the contrary in this Section 2.9, if, at the time that a request is made pursuant to this Section 2.9(a) or prior to the time such request is given effect, a Class of which Commitments has been terminated or a Commitment Termination Date has occurred with respect to a Class, such request shall be set forth in a Lender joinder agreement):apply with respect to the remaining Class of Commitments and this Section 2.9 shall apply mutatis mutandis to such request and any such increase.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateProvided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may from time to time, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Aggregate Commitments (any such increase, by an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)aggregate amount not exceeding $150 million; provided that (1i) any such request for an increase shall be in a minimum amount of $25 million, except in the total aggregate principal amount case of the final request, which may be for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 the entire remaining amount, and (2ii) ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may make a maximum of three such requests. At the total aggregate amount for each Incremental Loan Commitment time of sending any such notice, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International (and in consultation with the Incremental Loans made thereunderAdministrative Agent) shall not specify the time period within which each Lender is requested to respond (which shall in no event be less than a minimum principal amount ten Business Days from the date of $10,000,000 or, if less, the remaining amount permitted pursuant delivery of such notice to the foregoing clause (1Lenders). Each Lender shall notify the Administrative Agent within such notice shall specify the date (eachtime period whether or not it agrees to increase its Commitment and, if so, whether by an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered deemed to Administrative Agenthave declined to increase its Commitment. The Borrower Administrative Agent shall notify ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may also invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in Agent and its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:counsel.
(Ab) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) If the making of any Incremental Loans pursuant thereto;
(B) Aggregate Commitments are increased in accordance with this Section 2.15, the Administrative Agent and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase. The Administrative Agent shall promptly notify ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory deliver to the Administrative AgentAgent a certificate of each Loan Party dated as of the Increase Effective Date (for further distribution to each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, that and (ii) in the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)case of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International, as applicablecertifying that, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (yA) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article V and the other Loan Documents are true and correct in all material respectson and as of the Increase Effective Date, except to the extent any that such representation representations and warranty is qualified by materiality or reference warranties specifically refer to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, in which representation and warranty shall remain case they are true and correct as of such earlier date);
, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (Da) the proceeds and (b) of any Incremental Loans Section 5.05 shall be used for general corporate purposes deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists. The Applicable Borrowers shall prepay any Loans outstanding on the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the Incremental extent necessary to keep the outstanding Loans made thereunder) shall constitute Obligations of ratable with any revised Pro Rata Shares arising from any nonratable increase in the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) Commitments under this Section 2.15; provided that in the case of each Incremental Term Loan any Revolving Loans denominated in an Alternative Currency, no such prepayment may be made other than on the last day of the applicable Interest Period for such Loans, unless the Lenders consent thereto.
(the terms of which c) This Section shall be set forth supersede any provisions in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Sections 2.13 or 10.01 to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Sources: Credit Agreement (Mettler Toledo International Inc/)
Increase in Commitments. (a) At any time following the Closing DateBorrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy of each to the Lenders), request that the establishment of:Commitment be increased by an amount not less than $10,000,000 for any such increase; provided
(i) one or more incremental that such request for increase may be given only once during the term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
hereof and (ii) one or more increases that after giving effect to any such increase the sum of the Commitment and the commitments under the 364-Day Credit Agreement shall not exceed $200,000,000 minus any amount by which the Commitment and the commitments under the 364-Day Agreement shall have been reduced pursuant to SECTION 2.3 and SECTION 2.2 of the 364-Day Agreement. Such notice shall set forth the amount of the requested increase in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 Commitment and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice increase is delivered requested to Administrative Agent. The Borrower 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 invite 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 clause (a) being called an "AUGMENTING LENDER") the opportunity to extend credit hereunder or increase their existing Committed Sums in an aggregate amount equal to the proposed increase; provided that no Lender shall be obligated to agree to increase its Committed Sum; and, provided further, that each Augmenting Lender, any Affiliate if not already a 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.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the Commitment pursuant to this SECTION 2.4 (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 Augmenting Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent, Agent in same day funds an amount equal to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
the difference between (A) no Default or Event the product of Default shall exist on (1) such Increased Amount Date before or Lender's Commitment Percentage (calculated after giving effect to (1the Commitment Increase) any Incremental Loan Commitment and multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
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 Lender prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Lender's Commitment Percentage (calculated after giving effect to the Commitment Increase) multiplied by (on a pro forma basis) to (x) any Incremental Loan Commitment, (y2) the making amount of any Incremental Loans pursuant thereto the Subsequent Borrowings, and (with any Incremental Loan Commitment being deemed to be fully fundediv) after the Administrative Agent receives the funds specified in clauses (ii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Lender whose Committed Sum is not being increased (Ca "NON-INCREASING LENDER") each 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 representations Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non-Increasing 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 true and correct deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes aggregate principal amount of the Borrower Initial Loans and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower types and shall be secured and guaranteed with for the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing Request delivered to the Administrative Agent in accordance with SECTION 2.5, (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 Borrower;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 (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.
(Gc) Increases and new Commitments created pursuant to this SECTION 2.4 shall become effective on the date specified in the case notice delivered by Borrower pursuant to the first sentence of each Incremental Revolving Credit Increase paragraph (a) above.
(d) Notwithstanding the terms foregoing, no increase in the total Commitments (or in the Commitment of which any Lender) or addition of a new Lender shall be become effective under this Section unless, (i) on the date of such increase, the conditions set forth in SECTIONS 7.1 and 7.2 shall be satisfied and the Administrative Agent shall have received a Lender joinder agreement):certificate to that effect dated such date and executed by a Responsible Officer, and (ii) the Administrative Agent shall have received (with 17 NBPLP CREDIT AGREEMENT 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 the partnership power and authority of Borrower to borrow hereunder after giving effect to such increase.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Increase in Commitments. (a) At Anything in this Agreement to the contrary notwithstanding, at any time following and from time to time prior to the Closing Maturity Date, the Borrower may Company may, by written notice to the Administrative Agent elect (which the Administrative Agent shall promptly furnish to each Lender in the applicable Tranche), request the establishment of:
(i) that one or more incremental term loan commitments Persons (which may include any such incremental term loan commitmentLender, an “Incremental Term Loan Commitment”as provided below) offer to make one increase their Commitments under any Tranche (if they are Lenders) or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans Commitments under this Agreement any Tranche (any if they are not already Lenders) (such increaseincreased and/or additional Commitments being, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan 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 terms 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 which an assignment to such Person (such consent not to be unreasonably withheld). The minimum aggregate amount of any Tranche Increase shall be set forth $10,000,000 in a Lender joinder agreement)the case of the US Tranche and the US Dollar Equivalent of $5,000,000 in the case of the European Tranche. In no event shall the aggregate amount of all Tranche Increases pursuant to this paragraph (a) exceed the US Dollar Equivalent of $75,000,000. No more than two Tranche Increases shall be made during the term of this Agreement. The Company may arrange for one or more banks or other financial institutions, which may include any Lender, to extend applicable Commitments or increase their existing applicable Commitments in an aggregate amount equal to the amount of the Tranche Increase. In the event that one or more of such Persons offer to increase or enter into such Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the 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 connection therewith, the Company, any other applicable Borrower, such Incremental Term Loan will mature Persons, the Administrative Agent shall execute and amortize in a manner deliver an appropriate amendment to this Agreement (or other appropriate documentation reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;Company to effectuate the Tranche Increase), which amendment or other documentation shall specify, among other things, the procedures for reallocating any outstanding Revolving Credit Exposure under the Tranche that is subject to the Tranche Increase effected by such amendment or other documentation and the Company shall deliver such authorization documentation and opinions of counsel as the Administrative Agent shall reasonably request; provided, that no consent of any Lender not participating in such Tranche Increase shall be required. Notwithstanding anything to the contrary set forth herein, the Administrative Agent shall have at least 15 Business Days, but no more than 20 Business Days, prior to the proposed effective date for such Tranche Increase to obtain administrative details from Lenders increasing their Commitments or Persons becoming new Lenders hereunder and to otherwise administer such Tranche Increase, including processing Borrowing Requests and determining whether breakage amounts, if any, will be required to be paid by the Borrowers. No such increase shall be effective until such administration period has expired.
(Gb) Notwithstanding the foregoing, no increase in the case Commitments (or in the Commitment of each Incremental Revolving Credit Increase (any Lender) or addition of a new Lender shall become effective under this Section if any Default or Event of Default has occurred and is continuing prior to the terms effectiveness of which shall be set forth in a Lender joinder agreement):any such increase or would arise after giving effect thereto.
Appears in 1 contract
Increase in Commitments. (a) At any time following after the Closing DateEffective Date and no more than two times during any calendar year, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request at any time or from time to time that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)be increased; provided that (1i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for of each Incremental Loan Commitment (and the Incremental Loans made thereunder) such increase pursuant to this Section shall not be less than a minimum principal $25,000,000 and the aggregate amount of $10,000,000 or, if less, the remaining amount permitted all such increases pursuant to the foregoing clause this Section shall not exceed $250,000,000, (1). Each ii) each such notice shall specify the date (each, an “Increased Amount Date”) on which request of the Borrower proposes that any Incremental Loan Commitment shall be effectivedeemed to be an offer to each Bank to increase its Commitment by its Applicable Percentage of the proposed increased amount, which shall be a date not less than ten and (10iii) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declineeach Bank, in its sole discretion, may either (A) agree to provide such Incremental Loan increase its Commitment by all or a portion of the offered amount or (B) decline to increase its Commitment. Any Incremental Loan 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 Banks shall have agreed to increase their Commitments by an aggregate amount less than the increase in the Total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Bank”), which may include any Bank, to extend Commitments or increase its existing Commitment in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Bank, if not already a Bank hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld or delayed). Increases to and new Commitments created pursuant to this paragraph (a) shall become effective upon the execution and delivery by the Borrower, the Agent and any Banks (including any Augmenting Banks) agreeing to increase their existing Commitments or extend new Commitments, as the case may be, of an agreement providing for such increased or additional Commitments (a “Commitment Increase Agreement”), subject to the satisfaction of any conditions set forth in such agreement. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in Sections 3.02 (Ac) no Default or Event of Default and (d) shall exist be satisfied (as though a Borrowing were being made on such Increased Amount Date before or after giving effect to (1date) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders Agent shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form certificate to that effect dated such date and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each executed by an authorized officer of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Datea)The Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders of the applicable Class), request that the establishment of:
(i) one Tranche A Commitments or the Tranche B Commitments be increased; provided that the total Commitments shall not be increased by more incremental than US$500,000,000 during the term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) of this Agreement pursuant to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases this Section. Such notice shall set forth the amount of the requested increase in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan total Commitments, the “Incremental Loan Commitments”) Class to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 be so increased and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 of such Class the opportunity to increase its Commitment of such Class by its Applicable Percentage of the proposed increased amount. Each Lender of the applicable Class shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the Administrative AgentAgent given not more than 10 days after the date of the Company’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide of the applicable Class by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment of the applicable Class (and any Incremental Loan Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment of such Class). 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 of the applicable Class shall have agreed pursuant to the preceding sentence to increase their Commitments of such Class by an aggregate amount less than the increase in the total Commitments of such Class requested by the Company, the Company may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as extend Commitments of such Increased Amount DateClass or increase their existing Commitments of such Class in an aggregate amount equal to the unsubscribed amount; provided that:
(A) no Default or Event that each Augmenting Lender, if not already a Lender of Default either Class hereunder, shall exist on such Increased Amount Date before or after giving effect be subject to (1) any Incremental Loan Commitment and (2) the making approval of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant each Issuing Bank and each Swingline Lender (such approvals not to Section 7.1(a) or 7.1(bbe unreasonably withheld), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) Company and each Augmenting Lender shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), execute all such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except documentation as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) shall reasonably specify to evidence its Commitment of such Class and/or its status as a Lender of such Class hereunder. Any increase in the case total Commitments of each Incremental Revolving Credit Increase (either Class may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
Increase in Commitments. (ai) At any So long as no Event of Default has occurred and is continuing or would result therefrom, from time following to time after the Closing DateAgreement Date and on or before June 2, the 2008, Borrower may by may, upon at least 30 days’ written notice to the Administrative Agent elect (who shall promptly provide a copy of such notice to each Lender), propose to increase the Revolving Loan Commitments by an amount not to exceed $25,000,000 (the amount of any such increase, the “Additional Commitment Amount”); provided, however, the Borrower shall not be permitted to request an increase in the establishment of:
Revolving Loan Commitments more that three (3) time during the term of this Agreement. Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Loan Commitment by a principal amount equal to the product of (i) one its Revolving Commitment Ratio, multiplied by (ii) the Additional Commitment Amount. No Lender (or more incremental term loan commitments (any such incremental term loan commitmentsuccessor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement and the other Loan Documents, an “Incremental Term and any decision by a Lender to increase its Revolving Loan Commitment”) to make one or more term loans (Commitment shall be made in its sole discretion independently from any such additional term loans, an “Incremental Term Loan”); orother Lender.
(ii) If any Lender shall not elect to increase its Revolving Loan Commitment pursuant to clause (i) above, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respectsexisting Lenders) which at the time agrees to, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term any such Person that is an existing Lender, increase its Revolving Loan Commitment and in the case of any other such Person (the terms of which shall be set forth in a Lender joinder agreementan “Additional Lender”), such Incremental Term Loan will mature and amortize in become a manner reasonably party to this Agreement; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but which acceptance will not be unreasonably withheld or delayed. The sum of the increases in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan Commitments of the existing Lenders pursuant to this subsection (ii) plus the Revolving Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(iii) An increase in the aggregate amount of the Revolving Loan Commitments pursuant to this Section 2.5(c) shall become effective upon the receipt by the Administrative Agent of an agreement in form and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably substance satisfactory to the Administrative Agent and signed by the Borrower;, by each Additional Lender and by each other Lender whose Revolving Loan Commitment is to be increased, setting forth the new Revolving Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to the increase in the Revolving Loan Commitments and such opinions of counsel for the Borrower and such other documentation with respect to the increase in the Revolving Loan Commitments as the Administrative Agent may reasonably request.
(Giv) Upon the acceptance of any such agreement by the Administrative Agent, the Revolving Loan Commitments shall automatically be increased by the amount of the Revolving Loan Commitments added through such agreement.
(v) Upon any increase in the aggregate amount of the Revolving Loan Commitments pursuant to this Section 2.5(c) that is not pro rata among all Lenders based on their respective Revolving Commitment Ratios, within five Business Days, in the case of each Incremental Revolving Credit Increase (any Base Rate Advances then outstanding, and at the terms end of which the then current Eurodollar Advance Period with respect thereto, in the case of any Eurodollar Advances then outstanding, the Borrower shall be set forth prepay such Loans in a Lender joinder agreement):their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article IV, the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in such proportion.
Appears in 1 contract
Sources: Credit Agreement (Gtsi Corp)
Increase in Commitments. (a) At The Borrower may at any time following the Closing Dateand from time to time, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to request the establishment of:
(iBanks) executed by a Responsible Officer of the Borrower and one or more incremental term loan commitments financial institutions (any such incremental term loan commitment, financial institution referred to in this Section being called an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LoanIncreasing Bank”); or
, which may include any Tranche A-1 Bank, cause the Tranche A-1 Commitments of the Increasing Banks to be increased (iior cause the Increasing Banks to extend new Tranche A-1 Commitments) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment Increasing Bank (and the Incremental Loans made thereunder) which shall not be less than a minimum principal amount $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 Tranche A-1 Commitments and increases in existing Tranche A-1 Commitments becoming effective under this paragraph during the term of this Agreement shall not exceed $10,000,000 or200,000,000 in the aggregate, (iii) each Increasing Bank, if lessnot already a Bank hereunder, the remaining amount permitted pursuant shall be subject to the foregoing clause approval of the Administrative Agent (1). Each such notice which approval shall specify the date not be unreasonably withheld) and (eachiv) each Increasing Bank, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment if not already a Bank hereunder, shall be effective, which shall be become a date not less than ten (10) Business Days after the date on which such notice is delivered party to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory this Agreement by completing and delivering to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or Agent a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth duly executed accession agreement in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be form reasonably satisfactory to the Administrative Agent and the Borrower;
Borrower (G) an “Accession Agreement”). New Tranche A-1 Commitments and increases in Tranche A-1 Commitments shall become effective on the date specified in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):applicable notices delivered pursuant to this Section 2.
Appears in 1 contract
Increase in Commitments. (a) At any time following Following the Closing Date, Airgas shall have the Borrower may by right, upon at least fifteen (15) Business Days’ prior written notice to the Administrative Agent elect Agent, to request increase the establishment ofU.S. Revolving Committed Amount and/or the Foreign Currency Committed Amount by an aggregate amount for all such increases not to exceed $325,000,000, in one or more increases, at any time and from time to time; subject, however, in any such case, to satisfaction of the following conditions precedent:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist has occurred and is continuing on the date on which such Increased Amount Date before or after giving effect increase is to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant theretobecome effective;
(ii) the representations and warranties set forth in Article VI of this Credit Agreement shall be true and correct in all material respects on and as of the date on which such increase is to become effective;
(iii) no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the best knowledge of Airgas, threatened by or against the Consolidated Parties or against any of their respective properties or revenues which (A) relates to any of the Credit Documents or any of the transactions contemplated hereby or thereby or (B) would be reasonably expected to have a Material Adverse Effect;
(iv) since March 31, 2011, there has been no development or event relating to or affecting the Administrative Consolidated Parties which has had or would be reasonably expected to have a Material Adverse Effect;
(v) such increase shall be an integral multiple of $1,000,000 and shall in no event be less than $5,000,000;
(vi) such requested increase shall be effective on such date only to the extent that, on or before such date, (A) the Agent and the Lenders shall have received and accepted a corresponding amount of Additional Commitment(s) pursuant to a commitment letter(s) acceptable to the Agent from one or more lenders that would qualify as an Eligible Assignee (assuming such transaction were treated as an assignment pursuant to Section 11.3(b)) (it being understood that no Lender shall be obligated to increase any of its Commitments pursuant to this Section without its consent) and (B) each such lender shall have executed an agreement in the Borrower form of Exhibit 4.4 hereto (each such agreement a Pro Forma Compliance Certificate demonstrating“New Commitment Agreement”), accepted in writing therein by the Agent and, with respect to any lender that is not at such time a Lender hereunder, Airgas, with respect to the Additional Commitment of such lender;
(vii) the Agent shall have received all documents (including board of directors’ resolutions and opinions of counsel) it may reasonably request relating to the corporate or other necessary authority for and the validity of such increase in the U.S. Revolving Committed Amount and/or the Foreign Currency Committed Amount, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) if the reallocation, that if any, of outstanding Loans among the Borrower Lenders in connection with such increase results in the prepayment of Eurocurrency Loans on a day which is in compliance not the last day of an Interest Period with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered respect thereto, Airgas shall have paid to each affected Lender such amounts, if any, as may be required pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect 4.11; and
(on a pro forma basis) to (x) any Incremental Loan Commitment, (yix) the making aggregate amount of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except increases to the extent any such representation and warranty is qualified Foreign Currency Committed Amount effected by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunderthis Section 4.4(b) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):exceed $50,000,000.
Appears in 1 contract
Sources: Credit Agreement (Airgas Inc)
Increase in Commitments. (a) At The Borrower may at any time following and from time to time not later than six months prior to the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (total Commitments be increased by an amount of at least $25,000,000 on the occasion of any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase and not in excess of $100,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans aggregate under this Agreement (any such increaseand the 364-day Credit Agreement, an “Incremental Revolving Credit Increase” and, together with being entered into on the Incremental Term Loans, date hereof. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such increase is requested to become effective (which shall be not less than 15 days or more than 30 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 is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 15 days after the date of the Borrower's notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment Lender that does not deliver such a notice within such period of 15 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 15th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an "Augmenting Lender"), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount, provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Lender hereunder. Any Incremental Loan Commitment Increases and new Commitments created pursuant to this clause (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwith standing the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in paragraphs (Aa),(b) no Default or Event and (c) of Default Section 4.02 shall exist be satisfied (with all references in such paragraphs to a Borrowing being deemed to be 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 (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on such Increased Amount the Effective Date before or under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase.
(b) On the effective date (the "Increase Effective Date") of any increase in the total Commitments pursuant to paragraph (a) above (the "Commitment Increase"), (i) the aggregate principal amount of the Loans outstanding (the "Initial Loans") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the relevant Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) any Incremental Loan such Lender's Applicable Percentage (calculated after giving effect to such Commitment and Increase) multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the related Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's Applicable Percentage (calculated without giving effect to such Commitment Increase) multiplied by (2) the amount of the related Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Lender's Applicable Percentage (calculated after giving effect to such Commitment Increase) multiplied by (on a pro forma basis) to (x) any Incremental Loan Commitment, (y2) the making amount of any Incremental Loans pursuant thereto the related Subsequent Borrowings, and (with any Incremental Loan Commitment being deemed to be fully fundediv) after the Administrative Agent receives the funds specified in clauses (ii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (CA) each the product of (1) such Non-Increasing Lender's Applicable Percentage (calculated without giving effect to such Commitment Increase) multiplied by (2) the amount of the representations related Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non- Increasing Lender's Applicable Percentage (calculated after giving effect to such Commitment Increase) multiplied by (2) the amount of the related Subsequent Borrowings, (v) after the effectiveness of such Commitment Increase, the Borrower shall be true and correct deemed to have made new Borrowings (the "Subsequent Borrowings") in all material respects, except an aggregate principal amount equal to the extent any such representation aggregate principal amount of related Initial Loans and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower types and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and for the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and the Borrower;
(G) in the case each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase related Subsequent Borrowing (calculated after giving effect to such Commitment Increase) and (vii) the terms Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the related Initial Loans. The deemed payments made pursuant to clause (i) above in respect of which each Eurocurrency Loan shall be set forth in a Lender joinder agreement):subject to indemnification by the Borrower pursuant to the provisions of Section 2.16 if the relevant Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one total US Tranche Commitments, Swiss Tranche Commitments or more incremental term loan commitments (any such incremental term loan commitment, Japanese Tranche Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $25,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with ; PROVIDED that after giving effect to any such increase the Incremental Term Loan 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 “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increasecase may be, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 on which such notice is delivered of the Company's notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment 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 elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution being called an "AUGMENTING LENDER"), which may include any Lender, to extend 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 equal to the unsubscribed amount; PROVIDED that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and 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 sole discretion, to provide such Incremental Loan Commitmentstatus as a Lender hereunder. Any Incremental Loan 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.
(b) 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 become effective be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a US Tranche Lender, Swiss Tranche Lender or Japanese Tranche Lender, as of the case may be, prior to the Commitment Increase shall pay to the Administrative Agent or another Agent designated by the Administrative Agent for such Increased Amount Date; provided that:
purpose in same day funds an amount equal to the difference between (A) no Default the product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Event of Default shall exist on such Increased Amount Date before or Japanese Tranche Percentage, as the case may be (calculated after giving effect to (1) any Incremental Loan the Commitment and Increase), multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the Administrative Agent and product of (1) such Lender's US Tranche Percentage, Swiss Tranche Percentage or Japanese Tranche Percentage, as the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory case may be (calculated without giving effect to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(bCommitment Increase), as applicable, both before and after giving effect multiplied by (on a pro forma basis2) to (x) any Incremental Loan Commitmentthe amount of the Initial Loans, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(Ciii) each of the representations and warranties contained in Section 6 Augmenting Lender that shall be true and correct in all material respects, except not have been a Lender prior to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty Commitment Increase shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory 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 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. 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.
(Gc) Increases and new Commitments created pursuant to this Section 2.10 shall become effective on the date specified in the case notice delivered by the Company pursuant to the first sentence of each Incremental Revolving Credit Increase paragraph (a) above.
(d) Notwithstanding the terms foregoing, no increase in the Commitments of which any Class (or in any Commitment of any Lender) or addition of an Augmenting Lender shall be become effective under this Section unless, (i) on the date of such increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a Lender joinder agreement):certificate to that effect dated such date and executed by the chief financial officer of the Company, and (ii) 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 the corporate power and authority of the applicable Borrowers to borrow hereunder after giving effect to such increase.
Appears in 1 contract
Sources: Five Year Credit Agreement (Edwards Lifesciences Corp)
Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased (which increase shall increase the then effective Letter of Credit sublimit set forth in Section 3.3(i)(b) on a dollar-for- dollar basis up to a maximum sublimit of $200,000,000); provided that, without the prior written consent of all of the Lenders, (a) At any the Aggregate Commitment shall at no time following exceed $300,000,000 minus the Closing Date, aggregate amount of all reductions in the Borrower may by written notice Aggregate Commitment previously made pursuant to Section 2.5(A) or (B); (b) the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (Company shall not make any such incremental term loan commitment, an “Incremental Term Loan Commitment”request during the six month period following any reduction in the Aggregate Commitment previously made pursuant to Section 2.5(A) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”B); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1c) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) Company shall not be less entitled to make more than one such request during the term of this Agreement; and (d) each such request shall be in a minimum principal amount of at least $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)50,000,000 and increments of $1,000,000 in excess thereof. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment Such request shall be effective, which shall be made in a date not less than ten (10) Business Days after the date on which such written notice is delivered given to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory Company not less than twenty (20) Business Days prior to the Administrative Agentproposed effective date of such increase, that which notice (a "COMMITMENT INCREASE NOTICE") shall specify the Borrower is amount of the proposed increase in compliance with the financial covenants set forth in Section 7.10 based on Aggregate Commitment and the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)proposed effective date of such increase. In the event of such a Commitment Increase Notice, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 Lenders shall be true and correct given the opportunity to participate in all material respects, except the requested increase ratably in proportions that their respective Commitments bear to the extent Aggregate Commitment. No Lender shall have any such representation and warranty obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date fifteen (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D15) the proceeds of any Incremental Loans shall be used for general corporate purposes Business Days after receipt of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) Commitment Increase Notice, each Incremental Loan Commitment (and the Incremental Loans made thereunder) Lender shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory submit to the Administrative Agent and a notice indicating the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of maximum amount by which shall be set forth in a Lender joinder agreement):it is willing to increase its Commitment
Appears in 1 contract
Increase in Commitments. (ai) At any time following the Closing DateOnce per calendar year (or more frequently as permitted by Agent) Borrower may, the Borrower may by written notice to Agent, request that the Administrative Agent elect Total Commitment Amount be increased by an amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases exceed $100,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as increases from the Closing Date until the last day of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 orPeriod, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes provided that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist has occurred and is continuing at the time of such request and on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making date of any Incremental Loans pursuant thereto;
such increase and (B) the Administrative Agent and the Lenders Borrower shall have received from the Borrower delivered to Agent, together with such written notice, a Pro Forma Compliance Certificate demonstratingcopy of Borrower's duly adopted corporate resolutions, in form and substance reasonably satisfactory to the Administrative Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower is as being true, correct, complete and in compliance with the financial covenants full force and effect. Upon receipt of any such request, Agent shall deliver a copy of such request to each Lender. Borrower shall set forth in Section 7.10 based such request the amount of the requested increase in the Total Commitment Amount (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 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 request and that, in any event, must be at least 90 days prior to the 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 in its sole discretion, 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 such 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 financial statements most recently 10th day after Agent shall have delivered notice as set forth above, the Increasing Lenders shall have agreed pursuant to Section 7.1(a) 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 7.1(bmore banks or other entities that are acceptable to Agent and each LC Issuer (each such Person so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such documentation as applicableAgent 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, both before or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the outstanding Revolving Loans (on a pro forma basisif 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) any Incremental Loan Commitment, by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the making Loans outstanding at the time of any Incremental increase in the Total Commitment Amount pursuant to this Section 2.10(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such Loans pursuant thereto (other than in accordance with any Incremental Loan their new Commitment being deemed to be fully funded) and Percentages; or (z) by any Permitted Acquisition consummated in connection therewith;
(C) each combination of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):foregoing.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. (a) At any time following the Closing DateProvided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may from time to time, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Aggregate Commitments (any such increase, by an “Incremental Revolving Commitment” and, together aggregate amount not exceeding $300 million either by having a Lender increase its Commitment then in effect or by adding as a Lender with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)a new Commitment hereunder a Person which is not then a Lender; provided that (1i) any such request for an increase shall be in a minimum amount of $10 million, except in the total aggregate principal amount case of the final request, which may be for all the entire remaining amount, (ii) ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may make a maximum of five such Incremental Loan Commitments shall not requests, and (as 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 date request for increases in the Commitment of incurrence thereof) exceed $250,000,000 and any existing Lender, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International (2) in consultation with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunderAdministrative Agent) shall not specify the time period within which each Lender is requested to respond (which shall in no event be less than a minimum principal amount ten Business Days from the date of $10,000,000 or, if less, the remaining amount permitted pursuant delivery of such notice to the foregoing clause (1Lenders). Each Lender shall notify the Administrative Agent within such notice shall specify the date (eachtime period whether or not it agrees to increase its Commitment or extend incremental term loans and, if so, whether by an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered deemed to Administrative Agenthave declined to increase its Commitment or extend incremental term loans hereunder. The Borrower Administrative Agent shall notify ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International and each Lender of the Lenders’ responses to each request made hereunder. ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International may also invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably additional Eligible Assignees satisfactory to the Administrative Agent, Agent (acting reasonably) to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached become Lenders pursuant to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, joinder agreement in form and substance reasonably satisfactory to the Administrative Agent▇▇▇▇▇▇▇-▇▇▇▇▇▇ International, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):their respective counsel.
Appears in 1 contract
Sources: Credit Agreement (Mettler Toledo International Inc/)
Increase in Commitments. (a) At The Borrowers may at any time following after the Closing Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent elect to Agent, request the establishment of:
(i) addition of one or more incremental term loan commitments additional tranches of Term Loans (any such incremental term loan commitmenteach, an “Incremental Term Loan CommitmentFacility”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Commitments Credit Facility (any such increaseeach, an a “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Facility Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such PersonFacilities, an “Incremental LenderFacility”) pursuant to additional commitments (the “Incremental Commitments”) to be effective as of a date (the “Increase Date”) as specified in the related Incremental Amendment; provided, however, that (i) in no event shall the aggregate amount of all of the Incremental Commitments, taken together with any Additional Debt incurred pursuant to Section 7.03(b)(xxii). Any proposed , exceed the greater of (x) $500,000,000 and (y) an additional aggregate amount of Indebtedness such that, after giving pro forma effect to the establishment or incurrence, as the case may be, of all such Incremental Lender offered or approached Commitments (which shall be deemed to provide all or a portion include the full amount of any Revolving Facility Increase assuming the full amount of such increase has been drawn), the Consolidated Secured Leverage Ratio shall not be greater than 2.00:1.00 (or, in the case of any Incremental Loan Commitment may elect Commitments the proceeds of which shall be used to finance all or declineany portion of a Permitted Acquisition, in its sole discretion2.50:1.00), to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective determined on a Pro Forma Basis as of such Increased Amount Date; provided that:
(A) no Default or Event the last day of Default shall exist on such Increased Amount Date before or after giving effect the fiscal quarter for which financial information was most recently delivered to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b); provided that the aggregate Incremental Commitments, taken together with any Additional Debt incurred pursuant to Section 7.03(b)(xxii), shall have received from not exceed $1,000,000,000, (ii) each new Incremental Facility shall be in an aggregate amount of not less than $25,000,000, (iii) other than with respect to any Incremental Commitments the proceeds of which shall be used to finance all or any portion of the consideration for a Permitted Acquisition, each of the conditions set forth in Section 4.02 shall be satisfied after giving effect to the establishment of such Incremental Commitments, (iv) after giving pro forma effect to the establishment or incurrence, as the case may be, of such Incremental Commitments (which shall be deemed to include the full amount of any Revolving Facility Increase assuming the full amount of such increase has been drawn), as of the Increase Date, the Borrower Parties shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on a Pro Forma Compliance Certificate demonstratingBasis as of the last day of the fiscal quarter for which financial information was most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b), (v) (A) except as provided in form clause (B), the maturity date of any such Incremental Term Loans shall be no earlier than the Latest Maturity Date of the Term B Loans and substance the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (other than Term B-4 and Term B-5 Loans) and (B) with respect to Incremental Term Loans in an aggregate principal amount not to exceed (x) $250,000,000, plus (y) an additional aggregate principal amount equal to the aggregate principal amount of Term A Loans repaid or prepaid (other than any such Term A Loans prepaid or repaid with the proceeds of Indebtedness) by the Borrowers after the Amendment No. 1 Effective Date, but in any event the additional amount in this clause (y) not to exceed $250,000,000, the maturity date of such Incremental Term Loans shall be no earlier than the Latest Maturity Date of the Term A Loans and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the longest Weighted Average Life to Maturity of the Term A Loans, (vi) in the case of an Incremental Revolving Increase, the Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vii) the interest rate margins and floors, fees, discounts, premiums and (subject to clause (v)) amortization schedule applicable to any Incremental Term Loans shall be determined by the applicable Borrower and the lenders thereunder; provided that the interest rate margins with respect to any Incremental Term Loans shall not be greater than the interest rate margin with respect to each of the then outstanding Term B Loans plus 0.50% per annum unless the interest rate margin applicable to each of the then outstanding Term B Loans is increased so that the interest rate margin applicable to the Incremental Term Loans does not exceed the interest rate margin applicable to any outstanding Term B Loans by more than 0.50% per annum; provided that in determining the interest rate margin applicable to loans and/or commitments incurred pursuant to each Incremental Term Loan and each applicable Term B Loan, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the applicable Borrower to the Lenders of the applicable Term B Loans or the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (y) customary arrangement, structuring or other commitment fees payable to the Lead Arrangers or Amendment No. 1 Lead Arrangers (or their respective Affiliates) in connection with the applicable Term B Loans or to one or more arrangers in connection with such Incremental Term Loans shall be excluded and (z) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans), such differential between interest rate floors shall be equated to the applicable interest rate margin solely for purposes of determining whether the interest rate margin of such Incremental Term Loans is higher than the interest rate margin under the applicable Term B Loans by more than 0.50% and to the extent the difference in the interest rate floors would cause the interest rate margins of such Incremental Term Loans to be higher than the interest rate margins for the applicable Term B Loans by more than 0.50%, the interest rate floor (but not in any event the interest rate margin) applicable to each of the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans) shall be increased to the extent of such differential between interest rate floors; provided, further, that for purposes of this clause (vii), the Term B-1 Loans, Term B-2 Loans, Term B-3 Loans and Additional Term B-1 Loans shall be deemed to have been issued at par, (viii) any Incremental Facility shall rank pari passu in right of payment and of security with the Facilities on terms reasonably satisfactory to the Administrative AgentAgent and none of the Incremental Facilities shall have the benefit of any Guarantee or any Lien or other security except for the Guaranty and Liens under the Loan Documents for the benefit of the Obligations, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (xix) any Incremental Loan CommitmentTerm Loans may have other terms and conditions determined by the Borrowers and the lenders thereunder; provided that to the extent such terms and conditions are not consistent with the Term Loans, as the case may be (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified permitted by materiality clause (v) or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(Dvii) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementabove), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan they shall be reasonably satisfactory to the Administrative Agent.
(b) Each notice from the Borrowers pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Facility Increase, as applicable. Incremental Term Loans and Revolving Facility Increases may be made by any existing Lender (it being understood that no existing Lender will have a right or obligation to make a portion of any Incremental Term Loan or Revolving Facility Increase) or by any other Eligible Assignee that agrees to make an Incremental Term Loan or Revolving Facility Increase; provided that, to the extent the Administrative Agent’s consent would be required for an assignment to such Eligible Assignee pursuant to Section 10.07, each such Eligible Assignee shall be subject to the approval of the Administrative Agent and, if such Eligible Assignee will provide any Revolving Facility Increase, the L/C Issuers and Swing Line Lender (such approval in each case not to be unreasonably withheld or delayed) and the Borrower, as applicable (any such other Eligible Assignee being called an “Additional Lender”). Commitments in respect of Incremental Term Loans and Revolving Facility Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Guarantor, the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment 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 reasonable opinion of the Administrative Agent and the Borrower;
Borrowers, to effect the provisions of this Section. The effectiveness of (G) and, in the case of any Incremental Amendment for an Incremental Term Loan or a Revolving Facility Increase, the borrowing thereunder) any Incremental Amendment shall be subject to the satisfaction on the Increase Date of each of (x) the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Revolving Credit Increase Amendment) and (y) such other conditions as the terms parties thereto shall agree; provided, however, clause (x) shall not apply to the effectiveness of an Incremental Amendment establishing Incremental Commitments the proceeds of which shall be set forth in used to finance all or any portion of the consideration for a Lender joinder agreement):Permitted Acquisition. The Borrower will use the proceeds of Incremental Term Loans and borrowings under any Revolving Facility Increase for any purpose not prohibited by this Agreement.
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Increase in Commitments. (a) At any time following the Closing DateRequest for Increase or a Term Loan. Provided there exists no Default, the Borrower may by upon written notice to the Administrative Agent elect and the Lenders, the Borrower may from time to time, request an increase in the establishment of:
(i) one Aggregate Commitments or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental a Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1i) the total aggregate principal amount for of all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) increases together with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of such Term Loans shall not exceed $10,000,000 or125,000,000, if less(ii) any such request for an increase or a Term Loan shall be in a minimum amount of $25,000,000, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”iii) on which the Borrower proposes that any Incremental may make a maximum of five (5) such requests and (iv) in the case of a Term Loan, such Term Loan Commitment (A) shall be effectivepari passu with the Committed Loans, which (B) shall mature on or after the Maturity Date, (C) shall be a date not less than ten subject to customary mandatory prepayment provisions and (10D) Business Days after the date shall otherwise be on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably terms and conditions satisfactory to the Administrative AgentAgent (such consent, in the event that such Term Loan is on then market terms, not to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”be unreasonably withheld). Any proposed Incremental Lender offered or approached In the event of a request of a Term Loan, the parties hereto acknowledge and agree that this Agreement shall be amended to provide all or a portion incorporate the Term Loan and related provisions and such amendment shall be subject to the prior written consent of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Required Lenders shall have received from (such consent not to be unreasonably withheld or delayed so long as such Term Loan satisfies the provisions of the preceding sentence). At the time of sending such notice, the Borrower a Pro Forma Compliance Certificate demonstrating, (in form and substance reasonably satisfactory to consultation with the Administrative Agent, that ) shall specify the Borrower time period within which each Lender is requested to respond (which shall in compliance with no event be less than ten Business Days from the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making date of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each delivery of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except such notice to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier dateLenders);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):.
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Increase in Commitments. (a) At The Company shall have the right at any time following (provided, that such right may not be exercised by the Company more than twice after the Closing Date, and each such exercised increase shall be in an amount not less than $25,000,000) to increase the Borrower Total Commitment hereunder by an aggregate amount, for all exercises pursuant to this Section 2.05, which is less than or equal to $100,000,000 by (i) requesting (which request may be agreed to or declined by written notice such Lender in its sole discretion) that one or more Lenders increase its respective Revolving Credit Commitment or (ii) adding to this Agreement one or more financial institutions as a Lender; provided, however, that each such financial institution shall be approved by the Company and the Administrative Agent elect (which approval shall not be unreasonably withheld). For the avoidance of doubt, if the Company’s request pursuant to clause (i) above is declined by such Lender, such request shall not be considered an exercise of the establishment ofCompany’s right for purposes of the first proviso in the preceding sentence. An increase in the Total Commitment shall be effectuated pursuant to an agreement with an Increasing Lender or Additional Lender, as applicable, in form and substance satisfactory to the Company and the Administrative Agent pursuant to which (x) in the case of an Additional Lender, such Additional Lender shall undertake a Revolving Credit Commitment, which Revolving Credit Commitment shall be in an amount at least equal to $10,000,000 or an integral multiple of $500,000 in excess thereof, (y) in the case of an Increasing Lender, such Increasing Lender shall increase its Revolving Credit Commitment, which increase in its Revolving Credit Commitment shall be at least equal to $1,000,000 or an integral multiple of $500,000 in excess thereof, and (z) in the case of any Additional Lender, such Additional Lender shall agree to be bound as a Lender under the terms and conditions of this Agreement and the other Loan Documents. Upon the effectiveness of any such agreement and its acknowledgement by the Company and the Administrative Agent (the date of any such effectiveness and acknowledgement, an “Increased Commitment Date”), such Additional Lender shall thereupon become a “Lender” for all purposes of this Agreement with a Revolving Credit Commitment in the 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 deemed amended to the extent, but only to the extent, necessary to reflect the addition of such Additional Lender or the increased Revolving Credit Commitment of such Increasing Lender, the resulting adjustment of the Revolving Credit Commitments arising therefrom and the adjustments described in Section 2.05(d) hereof.
(b) Any increase in the Total Commitment pursuant to Section 2.05(a) hereof shall not be effective unless:
(i) one the Company shall have given the Administrative Agent notice (which notice shall be promptly forwarded by the Administrative Agent to each Lender) of such desired increase at least fifteen (15) Business Days (or more incremental term loan commitments (such shorter period as the Administrative Agent may agree to in the given instance) prior to any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); orproposed Increased Commitment Date;
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or on such the Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;Date; and
(Biii) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained of the Company in Section 6 Article IV hereof shall be true and correct in all material respects, except respects on and as of the date of the notice referred to in clause (i) and on and as of the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such applicable Increased Amount Commitment Date with the same effect as if made on and as of such notice date or Increased Commitment Date (except for any to the extent such representation representations and warranty that by its terms is made only as of warranties expressly refer to an earlier date, in which representation and warranty case they shall remain be true and correct as of such earlier date);. Each notice given by the Company pursuant to Section 2.05(b)(i) hereof shall constitute a representation and warranty by the Company hereunder, as of the date of each such notice and as of each Increased Commitment Date, and after giving effect to the increase in the Total Commitment effective thereon, that the conditions in this Section 2.05(b) are satisfied.
(Dc) Effective on each Increased Commitment Date, (i) the proceeds amount of each Lender’s risk participation in all outstanding Letters of Credit shall be deemed to be automatically increased or decreased, as applicable, to reflect any changes in such Lender’s Commitment Proportion after giving effect to the increase in the Total Commitment effective thereon, and (ii) the amount of the Revolving Credit Loans then outstanding and held by each Lender shall be adjusted to reflect any such changes in such Lender’s Commitment Proportion. Each Lender having Revolving Credit Loans then outstanding and whose Commitment Proportion has been decreased as a result of the increase in the Total Commitment shall be deemed to have assigned, without recourse, such portion of such Revolving Credit Loans as shall be necessary to effectuate such adjustment to the Additional Lenders and Increasing Lenders (and each such assignment shall be deemed a prepayment for purposes of Section 3.08 hereof). Each Additional Lender and Increasing Lender shall (x) be deemed to have assumed such portion of such Revolving Credit Loans and (y) fund on the Increased Commitment Date, such assumed amounts to the Agent for the account of the assigning Lender in accordance with the provisions hereof.
(d) The Administrative Agent shall promptly notify the Lenders and the Company of any Incremental Loans shall be used for general corporate purposes increase in the Total Commitment under this Section 2.05 and of the Borrower and its Subsidiaries (including Permitted Acquisitions);each Lender’s Commitment Proportion after giving effect to any such increase.
(Ee) each Incremental Loan Commitment (and Upon the Incremental Loans made thereunder) shall constitute Obligations effectiveness of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) any increase in the case Total Commitment in accordance with this Section 2.05, the Company agrees to execute Revolving Credit Notes in favor of each Incremental Term Loan (Additional Lender and each Increasing Lender upon the terms request of which shall be set forth in a such Lender joinder agreement), to evidence such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Lender’s Revolving Credit Commitment after giving effect to such increase to the Administrative Agent, the Incremental Lenders making Total Commitment and to execute such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except other documents as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent shall deem necessary and the Borrower;
(G) in the case of each Incremental appropriate to give effect to this Section 2.05; provided, that any Increasing Lender who has requested a new Revolving Credit Increase (the terms of which Note in an amount equal to its increased Revolving Credit Commitment shall be set forth in a Lender joinder agreement):have returned for cancellation any other Revolving Credit Notes previously issued to it under this Agreement.
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Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased by an aggregate principal amount not in excess of $250,000,000; provided that, without the prior written consent of the Required Lenders, (a) At any the Aggregate Commitment shall at no time following exceed $900,000,000 minus the Closing Date, aggregate amount of all reductions in the Borrower may by written notice Aggregate Commitment previously made pursuant to Section 2.5(a); (b) the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Company shall not be entitled to make more than one or more term loans such request during any calendar year; and (any c) each such additional term loansrequest shall be in a minimum amount of at least $50,000,000 and increments of $5,000,000 in excess thereof, and shall be in an “Incremental Term Loan”); or
(ii) one or more increases in amount such that the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not of Loans to a Dutch Borrower which are purchased by a Proposed New Lender (as of any date of incurrence thereofother than a Proposed New Lender which is a Professional Market Party) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunderpursuant to Section 2.5(b)(ii) shall not be less than a minimum principal amount the equivalent in Dollars (calculated on the basis of $10,000,000 or, if less, the remaining amount permitted pursuant to Spot Rate of the foregoing clause (1). Each such notice shall specify Administrative Agent as of the date (each, an “Increased Amount Date”of such purchase) on of €100,000 in respect of each Dutch Borrower which the Borrower proposes that any Incremental Loan Commitment then has outstanding borrowings hereunder. Such request shall be effective, which shall be made in a date not less than ten (10) Business Days after the date on which such written notice is delivered given to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have received any obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is fifteen (15) Business Days after receipt of the Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice indicating the maximum amount by which it is willing to increase its Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such fifteen (15) Business Day period shall be deemed to have denied any increase in its Commitment. In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and each Arranger shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company’s Commitment Increase Notice. In the event that the increases of Commitments set forth in the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not be unreasonably withheld). If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Borrower a Pro Forma Compliance Certificate demonstratingLender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Company shall have obtained the consent thereto of each Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a(B) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, respects as though made on such Increased Amount Date with date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (C) the same effect as if made on Borrowers, the Administrative Agent and as each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such date (except for any such representation increase in the Aggregate Commitment shall have executed and warranty that by its terms is made only as delivered a “Commitment and Acceptance” substantially in the form of an earlier dateExhibit L hereto, which representation and warranty shall remain true and correct as of such earlier date);
(D) counsel for the proceeds of any Incremental Loans Company and for the Guarantors shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable have provided to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent supplemental opinions in form and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be substance reasonably satisfactory to the Administrative Agent and (E) the Borrower;Borrowers and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article V or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Company. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Company and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder and thereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(Gii) 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 case 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 clause (i) above, each Incremental Revolving Credit Increase 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 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 Loans 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 foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the 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 compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the sale and assignment of any Eurodollar Loan hereunder on the terms of which shall be and in the manner as set forth in a Lender joinder agreement):Section 4.4.
Appears in 1 contract
Sources: Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Increase in Commitments. The Borrower shall have the right at any time, but in no event more than twice in any consecutive twelve month period, to increase the aggregate Commitments in integral multiples of $25,000,000 (aprovided that the aggregate amount of the Commitments, as so increased, may not exceed $350,000,000, by adding to this Agreement one or more other Eligible Assignees (which may include any Bank (with the consent of such Bank, in its discretion)) At any time following (each such Eligible Assignee, an "Additional Bank"), with the Closing Date, the Borrower may by written notice to approval of the Administrative Agent elect (not to request be unreasonably withheld), each of which Additional Banks shall have entered into an agreement in form and substance satisfactory to the establishment ofBorrower and the Administrative Agent pursuant to which such Additional Bank shall undertake a Commitment (if any such Additional Bank is a Bank, its Commitment shall be in addition to such Bank's Commitment hereunder) which Commitment shall be in an amount at least equal to $10,000,000, and upon the effectiveness of such agreement (the date of the effectiveness of any such agreement being hereinafter referred to as the "Increased Commitment Date") such Additional Bank shall thereupon become a "Bank" for all purposes of this Agreement. Notwithstanding the foregoing, the increase in the aggregate Commitments hereunder pursuant to this Section 2.19 shall be effective only if:
(i) one or more incremental term loan commitments (the Borrower shall have given the Administrative Agent notice of any such incremental term loan commitment, an “Incremental Term Loan Commitment”) increase at least ten Business Days prior to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); orIncreased Commitment Date;
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or on such the Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;Date; and
(Biii) the Administrative Agent and the Lenders there shall have received from been no reduction of the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered Commitments pursuant to Section 7.1(a) 2.07 hereof on or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) prior to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Date.
Appears in 1 contract
Increase in Commitments. (a) At The Borrower may at any time following or from time to time after the Closing Effective Date, the Borrower may by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of:
(ix) one or more incremental term loan new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any such incremental term loan commitmentTerm Loan Increase, an the “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LoanLoans”); or
, or (iiy) one or more increases in the amount of the Revolving Commitments (any each such increase, an a “Incremental Revolving Commitment” andCommitment Increase”, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the referred to herein as an “Incremental Loans Facility”); , provided that (1i) at the total aggregate principal amount for all time of each such Incremental Loan Commitments shall not (as request and upon the effectiveness of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment Facility, (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(Ax) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall exist on be continuing at the time of execution of the applicable contract or agreement for such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment acquisition and (2) the making of any Incremental Loans pursuant thereto;
(B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Lenders Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have received from been satisfied, and (vi) the Borrower provision of Incremental Facilities pursuant to this Section 2.23 on a Pro Forma Compliance Certificate demonstratinggiven date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the Effective Date, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance ) with respect to security with the financial covenants set forth in Section 7.10 based on existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the financial statements most recently delivered pursuant to Section 7.1(aexisting Term Loans and shall not be secured by assets other than Collateral; (ii) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, mature on such Increased Amount Date with the same effect date and amortize on such schedule as if made on and as of such date (except for any such representation and warranty that each may be agreed by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each the Lenders providing such Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations Term Loan, provided that, as of the Borrower and date of incurrence, no Incremental Term Loan shall be secured and guaranteed with mature earlier than the other Extensions Term Maturity Date and, as of Credit on a pari passu basis;
(F) in the case date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the terms of which shall be applicable interest rate (subject to clause (e) below) and as set forth in a Lender joinder agreementthis clause (b), such shall be on terms and pursuant to documentation determined by the Borrower and the Additional Lenders providing the Incremental Term Loan will mature Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and amortize in a manner reasonably acceptable to (v) may include any Previously Absent Financial Covenant so long as the Administrative AgentAgent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Incremental Lenders making such Incremental Term Loan and Previously Absent Financial Covenant shall only be required to be included in this Agreement for the Borrower, but will not in any event have a shorter weighted average life to maturity than benefit of Revolving Loans); provided that (x) the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to the Incremental Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not consistent with the existing Term Loan Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent Agent; provided, further, that (x) any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Borrower;
(G) Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement 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 reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Increase Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving Credit Lender shall become a Lender with respect to the terms of which Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
(e) The All-In Yield applicable to the Incremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental Facility, the All-In Yield applicable to such Incremental Facility shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Incremental Facility minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Lender joinder agreement):Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in this clause (f), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) and such terms and conditions shall be current market terms for such ty
Appears in 1 contract
Increase in Commitments. (a) At If at any time following the Closing DateCommitments shall be less than $500,000,000, the Borrower may may, by written request to the Administrative Agent, request that the Lenders increase the Commitments hereunder in such amount that, when added together with the then-outstanding Commitments, shall not exceed $500,000,000, which amount shall be an integral multiple of $10,000,000; provided that, on and as of the Increase Date (as defined below), (i) if the aggregate commitments under the Other Credit Agreement are less than $500,000,000, then such aggregate commitments shall be increased accordingly to preserve the ratio of the aggregate commitments under the Other Credit Agreement to the sum of (A) the Commitments hereunder plus (B) the aggregate commitments under the Other Credit Agreement, and (ii) no Event of Default or Unmatured Default has occurred and is continuing. Such increase shall be effective as of a date which shall be any Business Day occurring not less than 25 days (unless otherwise agreed to by the Borrower and the Administrative Agent) nor more than 30 days from the date of such written request (such date herein referred to as the "Increase Date"). Upon receipt of written notice of such request from the Administrative Agent, each Lender shall have the opportunity, in its sole discretion, no later than 20 days after the date on which the Borrower's request shall have been received by the Administrative Agent, to commit to increase its Commitment by written notice to the Administrative Agent elect setting forth the amount by which such Lender proposes to increase its Commitment (each such Lender an "Existing Lender"). To the extent that the aggregate amount of the proposed increases is less than the aggregate amount of the increase requested by the Borrower, the Borrower may either (x) request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Administrative Agent to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more solicit the Lenders for further increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan their respective Commitments, (y) amend the “Incremental Loan Commitments”) original request by reducing the amount by which the Commitments are requested to make additional revolving credit loans under this Agreement (any such increase, be increased to an “Incremental Revolving Credit Increase” and, together with amount equal to the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment of the proposed increases of the Commitments or (and the Incremental Loans made thereunderz) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes request that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole reasonable discretion, to provide accept the participation in the proposed increase of one or more additional financial institutions (each an "Additional Lender"), provided that the minimum commitment of each such Incremental Loan CommitmentAdditional Lender equals or exceeds $10,000,000. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) If the Administrative Agent shall accept the proposed increases of the Existing Lenders and the Lenders Additional Lenders, the Commitments shall have received from be increased by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each aggregate amount of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made proposed increases on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty the Increase Date. The Administrative Agent shall remain true and correct as of such earlier date);
(D) allocate the proceeds of any Incremental Loans shall be used for general corporate purposes of increased amount pro rata among the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (Existing Lenders and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed Additional Lenders in accordance with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):their respective Commitments.
Appears in 1 contract
Increase in Commitments. (ai) At any time following the Closing DateOnce per calendar year (or more frequently as permitted by Agent) Borrower may, the Borrower may by written notice to Agent, request that the Administrative Agent elect Total Commitment Amount be increased by an amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases exceed $100,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as increases from the Closing Date until the last day of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 orPeriod, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes provided that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist has occurred and is continuing at the time of such request and on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making date of any Incremental Loans pursuant thereto;
such increase and (B) the Administrative Agent and the Lenders Borrower shall have received from the Borrower delivered to Agent, together with such written notice, a Pro Forma Compliance Certificate demonstratingcopy of Borrower’s duly adopted corporate resolutions, in form and substance reasonably satisfactory to the Administrative Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower is as being true, correct, complete and in compliance with the financial covenants full force and effect. Upon receipt of any such request, Agent shall deliver a copy of such request to each Lender. Borrower shall set forth in Section 7.10 based such request the amount of the requested increase in the Total Commitment Amount (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 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 request and that, in any event, must be at least 90 days prior to the 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 such 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 financial statements most recently 10th day after Agent shall have delivered notice as set forth above, the Increasing Lenders shall have agreed pursuant to Section 7.1(a) 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 7.1(bmore banks or other entities that are acceptable to Agent (each such Person so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such documentation as applicableAgent 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, both before or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the outstanding Revolving Loans (on a pro forma basisif 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) any Incremental Loan Commitment, by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the making Loans outstanding at the time of any Incremental increase in the Total Commitment Amount pursuant to this Section 2.10(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such Loans pursuant thereto (other than in accordance with any Incremental Loan their new Commitment being deemed to be fully funded) and Percentages; or (z) by any Permitted Acquisition consummated in connection therewith;
(C) each combination of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):foregoing.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. (a) At The Borrower may at any time following and from time to time not later than six months prior to the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (total Commitments be increased by an amount of at least $25,000,000 on the occasion of any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase and not in excess of $100,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans aggregate under this Agreement (any such increaseand the three-year Credit Agreement, an “Incremental Revolving Credit Increase” and, together with being entered into on the Incremental Term Loans, date hereof. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such increase is requested to become effective (which shall be not less than 15 days or more than 30 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 is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 15 days after the date of the Borrower's notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment Lender that does not deliver such a notice within such period of 15 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 15th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an "Augmenting Lender"), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount, provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Lender hereunder. Any Incremental Loan Commitment Increases and new Commitments created pursuant to this clause (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph. Notwith standing the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under this paragraph unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in paragraphs (Aa),(b) no Default or Event and (c) of Default Section 4.02 shall exist be satisfied (with all references in such paragraphs to a Borrowing being deemed to be 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 (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on such Increased Amount the Effective Date before or under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase.
(b) On the effective date (the "Increase Effective Date") of any increase in the total Commitments pursuant to paragraph (a) above (the "Commitment Increase"), (i) the aggregate principal amount of the Loans outstanding (the "Initial Loans") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the relevant Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) any Incremental Loan such Lender's Applicable Percentage (calculated after giving effect to such Commitment and Increase) multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the related Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's Applicable Percentage (calculated without giving effect to such Commitment Increase) multiplied by (2) the amount of the related Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Lender's Applicable Percentage (calculated after giving effect to such Commitment Increase) multiplied by (on a pro forma basis) to (x) any Incremental Loan Commitment, (y2) the making amount of any Incremental Loans pursuant thereto the related Subsequent Borrowings, and (with any Incremental Loan Commitment being deemed to be fully fundediv) after the Administrative Agent receives the funds specified in clauses (ii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (CA) each the product of (1) such Non-Increasing Lender's Applicable Percentage (calculated without giving effect to such Commitment Increase) multiplied by (2) the amount of the representations related Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non-Increasing Lender's Applicable Percentage (calculated after giving effect to such Commitment Increase) multiplied by (2) the amount of the related Subsequent Borrowings, (v) after the effectiveness of such Commitment Increase, the Borrower shall be true and correct deemed to have made new Borrowings (the "Subsequent Borrowings") in all material respects, except an aggregate principal amount equal to the extent any such representation aggregate principal amount of related Initial Loans and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower types and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and for the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and the Borrower;
(G) in the case each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase related Subsequent Borrowing (calculated after giving effect to such Commitment Increase) and (vii) the terms Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the related Initial Loans. The deemed payments made pursuant to clause (i) above in respect of which each Eurocurrency Loan shall be set forth in a Lender joinder agreement):subject to indemnification by the Borrower pursuant to the provisions of Section 2.16 if the relevant Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Nielsen Media Research Inc)
Increase in Commitments. (a) At The Borrower may, on any time following Business Day prior to March 31, 2000, with the Closing Datewritten consent of the Administrative Agent, increase the Borrower may aggregate amount of the Commitments by written notice delivering a Commitment Amount Increase Request at least 5 Business Days prior to the Administrative Agent elect to request desired effective date of such increase (the establishment of:
"Commitment Amount Increase") identifying an additional Bank (or additional Commitments for existing Bank(s)) and the amount of its Commitment (or additional amount of its Commitment(s)); provided, however, that (i) one or more incremental term loan commitments (any such incremental term loan commitmentincrease of the aggregate amount of the Commitments to an amount in excess of $425,000,000 will require the approval of all the Banks, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases any increase in the Commitments will be applied pro rata to the Revolving Credit Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental and Term Loan Commitments, and (iii) any increase of the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, aggregate amount of the Commitments shall be in an “Incremental Revolving Credit Increase” and, together with amount not less than $5,000,000. The effective date of the Incremental Term LoansCommitment Amount Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the “Incremental Loans ”); provided that new Bank (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if lessapplicable, the remaining existing Bank) shall advance Term Loans and Revolving Loans in an amount permitted pursuant to the foregoing clause (1). Each sufficient such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental its Loans pursuant thereto;
(B) the Administrative Agent and the Lenders each Bank shall have received from outstanding its pro rata share of Term Loans and Revolving Loans. It shall be a condition to such effectiveness that no Eurocurrency Loans be outstanding on the Borrower a Pro Forma Compliance Certificate demonstrating, in form date of such effectiveness and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with shall not have terminated any portion of the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered Commitments pursuant to Section 7.1(a) 1.14 hereof. The Borrower agrees to pay any fees or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each expenses of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable Agent relating to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Commitment Amount Increase.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Borrowers may, the Borrower may by written notice to the Administrative Agent Agent, elect to request (x) prior to the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitmentMaturity Date for the Revolving Facility, an “Incremental Term Loan Commitment”) increase to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the existing Revolving Commitments (any such increaseeach, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement and/or (any such increasey) the establishment of one or more new term loan commitments (each, an “Incremental Revolving Credit IncreaseTerm Commitment” and, together with and the Loans thereunder “Incremental Term Loans, the “Incremental Loans ”); provided that Incremental Revolving Commitments and Incremental Term Commitments are referred in this Section 2.18, as “Incremental Commitments”)), by an aggregate amount (1after giving effect to all increases under clauses (x) and (y)) not exceeding, in the total aggregate principal amount (for all such Incremental Loan Commitments shall not requests), the sum of (as of any date of incurrence thereof) exceed $250,000,000 and (2i) the total aggregate amount for each Incremental Loan Commitment Fixed Amount (and less any use under this Section 2.18 or Section 7.02(p) plus (ii) the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)Ratio Amount. Each such notice shall specify (i) the date (each, an “Increased Amount Increase Effective Date”) on which the Borrower proposes Borrowers propose that any the Incremental Loan Commitment Commitments shall be effective, which shall be a date not less than ten five (105) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, Agent and (ii) the identity of each Eligible Assignee to provide an whom the Borrowers propose any portion of such Incremental Loan Commitment (Commitments be allocated and the amounts of such allocations; provided that any such Person, an “Incremental Lender”). Any proposed Incremental existing Lender offered or approached to provide all or a portion of any the Incremental Loan Commitment Commitments may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Each Incremental Loan Commitment shall become effective as be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof (provided that such Increased Amount Date; provided that:
(A) no Default or Event amount may be less than $25,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants Commitments set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(babove), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Date2.15.1.1. Provided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), the Company may from time to time, request an increase in the establishment of:
Aggregate Commitments (i) one or more incremental which increase may take the form of additional Commitments, new term loan commitments tranches or any combination of the foregoing) by an aggregate amount (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments requests) not exceeding $1,000,000,000. At the time of sending such notice (such notice, for the avoidance of doubt, shall not be required regardless of whether such increase takes the form of additional Commitments, new term loan tranches or a combination of the foregoing), the Company (as of any date of incurrence thereof) exceed $250,000,000 and (2) in consultation with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunderAdministrative Agent) shall not specify the time period within which each Lender is requested to respond (which shall in no event be less than a minimum principal amount ten Business Days from the date of $10,000,000 or, if less, the remaining amount permitted pursuant delivery of such notice to the foregoing clause (1Lenders). Each Lender shall notify the Administrative Agent within such notice time period whether or not it agrees to increase its Commitment or to provide any commitment with respect to the new term loan tranche(s), as applicable (and, for the avoidance of doubt, no such Lender shall specify have an obligation to so agree), and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase or, in the date (eachcase of a commitment in respect of a new term loan tranche, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment amount of such commitment. Any Lender not responding within such time period shall be effectivedeemed to have declined to increase its Commitment or to provide any commitment with respect to the new term loan tranche(s), which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agentas applicable. The Borrower Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Company may also invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative AgentAgent and its counsel. Notwithstanding the foregoing provisions of this Section 2.15(a), during the first 90 days following the date hereof, the Company may invite Eligible Assignees to provide an Incremental Loan become Lenders under this Agreement in connection with a requested increase without first providing any Lender with the opportunity to increase its Commitment (any such Personas provided above.
2.15.1.2. If the Aggregate Commitments are increased in accordance with this Section 2.15, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the Company shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory deliver to the Administrative AgentAgent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, that and (ii) in the Borrower is in compliance with case of the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)Company, as applicablecertifying that, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (yA) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in ARTICLE V and the other Loan Documents are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) as of such earlier date, and except that, for purposes of this Section 6 2.15, (1) the representation and warranty contained in Section 5.08(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 6.01(a) and 6.01(b), respectively, and (2) the reference to “the date hereof” in Section 5.08(b) shall be deemed to refer to the Increase Effective Date and (B) no Default exists. 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 2.15.
2.15.1.3. In the event of an increase in Commitments pursuant to this Section 2.15, the provisions of this Section 2.15 shall govern any conflicts with provisions in Sections 2.13 or 11.01.
2.15.1.4. To the extent that the increase of the Aggregate Commitments shall take the form of a term loan tranche, this Agreement shall be amended, in form and in substance satisfactory to the Administrative Agent and the Company to include such terms as are customary for a term loan commitment, including but not limited to the following:
2.15.1.4.1. the final maturity of any such term loan tranche shall not be earlier than the Existing Maturity Date at the time of establishment of such term loan tranche; and
2.15.1.4.2. except as otherwise agreed by the lenders providing the relevant term loan tranche in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such new term loan tranche and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects, except respects on and as of the date of the initial borrowing under such term loan tranche with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any such representation and warranty is qualified by materiality specifically refers to a given date or reference to Material Adverse Effectperiod, in which case, such representation and warranty it shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and material respects as of such date (except or for such period; provided, further, that any such representation and or warranty that by its terms is made only qualified as of an earlier date, which representation and warranty to “materiality,” “Material Adverse Effect” or similar language shall remain be true and correct as of such earlier date);
(D) the proceeds of after giving effect to any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(Fqualification therein) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), all respects on such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):respective dates.
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Sources: Credit Agreement (McKesson Corp)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect to Agent, request the establishment of:
(i) one or more incremental term loan commitments (any each such incremental term loan commitmentrequest, an a “Incremental Term Loan CommitmentCommitment Increase Request”) that the Total Commitment be increased by an amount not to make exceed $25,000,000 such that the aggregate Total Commitment is not more than $100,000,000 after giving effect to all such increases from the Amendment No. 2 Effective Date until one or more term loans (any such additional term loansyear prior to the Facility Termination Date, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist has occurred and is continuing at the time of such Commitment Increase Request and on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making date of any Incremental Loans pursuant thereto;
such increase. The Administrative Agent shall deliver a copy of such Commitment Increase Request to each Lender. The Borrower shall set forth in such Commitment Increase Request the amount of the requested increase in the Total Commitment (Bwhich shall be in a minimum amount of $5,000,000 and in minimum increments thereafter of $5,000,000) and the date on which such increase is requested to become effective (which date shall be not less than 20 Business Days nor more than 60 days after the date of such notice and that, in any event, must be at least 385 days prior to the Facility Termination Date), and shall offer each Lender the opportunity to increase its Commitment by its Commitment Percentage of the proposed increased amount. Each Lender shall, by notice to the Borrower and the Administrative Agent and given not more than 10 Business Days after the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to date of delivery by the Administrative AgentAgent of the Borrower’s Commitment Increase Request, 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 Business 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”). If at the end of the 10 Business Day period referred to above there are any Non-Increasing Lenders, the Administrative Agent shall offer to each Increasing Lender the opportunity to increase its Commitment by all or a portion of the remaining amount of the requested increase that the Borrower is in compliance with Non-Increasing Lenders did not accept and, if such Increasing Lenders offer to increase their Commitments by more than such remaining amount, the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (Administrative Agent shall allocate such remaining amount among such Increasing Lenders on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) rata basis based upon each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Lender’s
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Increase in Commitments. (a) At any time following prior to the Closing Maturity Date, provided no Event of Default shall have occurred and then be continuing, AMB LP may request a one-time increase in the Borrower may aggregate amount of the Commitments (subject to (iii) below), either by designating an Eligible Bank not theretofore a Bank to become a Bank (such designation to be effective only with the prior written notice to consent of the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitmentAgent, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall which consent will not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each unreasonably withheld) and/or by agreeing with an existing Bank or Banks that such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Bank’s Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which increased. Upon execution and delivery by AMB LP and such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate Bank or other Eligible Bank of any Lender and/or any Approved Fund, and/or any other Person an instrument in form reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan such existing Bank shall have a Commitment (any as therein set forth or such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment Eligible Bank shall become effective a Bank with a Commitment as therein set forth and all the rights and obligations of a Bank with such Increased Amount Datea Commitment hereunder; provided that:
(Ai) no Default or Event AMB LP shall provide prompt notice of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory increase to the Administrative Agent, that who shall promptly notify the Borrower is Banks;
(ii) the Administrative Agent, the Hong Kong Dollars Agent (in compliance with the financial covenants set forth event in Section 7.10 based the increased Commitment involving Hong Kong Dollars), the Singapore Dollars Agent (in the event in the increased Commitment involving Singapore Dollars) and the Borrowers shall have agreed on (a) the financial statements most recently delivered increase and apportionment of the applicable Currency Commitments and, if applicable, (b) the terms and conditions of one or more Supplemental Tranches; and
(iii) the amount of such one time increase does not cause the Facility Amount to exceed $350,000,000. Upon any increase in the aggregate amount of the Commitments pursuant to this Section 7.1(a2.15, within five (5) Business Days (in the case of any Base Rate Loans or Canadian Base Rate Loans then outstanding) or 7.1(bat the end of the then-current Interest Period with respect thereto (in the case of any Euro-Dollar Loans then outstanding (other than Canadian Base Rate Loans)), as applicable, both before each Bank’s Pro Rata Share shall be recalculated to reflect such increase in the Commitments and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each outstanding principal balance of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes reallocated among the Banks such that the outstanding principal amount of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) Loans owed to each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and Bank shall be secured equal to such Bank’s Pro Rata Share (as recalculated). All payments, repayments and guaranteed with the other Extensions disbursements of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to funds by the Administrative Agent and the Borrower;to Banks shall thereupon and, at all times thereafter be made in accordance with each Bank’s recalculated Pro Rata Share.
(Gb) This Section 2.15 shall supersede any provisions in Sections 10.5 or 10.6 to the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
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Increase in Commitments. (i) At any time, the Company (on behalf of itself and the other Borrowers) may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (a) At any the Aggregate Commitment shall at no time following exceed $200,000,000 minus the Closing Date, aggregate amount of all reductions in the Borrower may by written notice Aggregate Commitment previously made pursuant to Section 2.5(A) or (B); (b) the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (Company shall not make any such incremental term loan commitment, an “Incremental Term Loan Commitment”request during the six month period following any reduction in the Aggregate Commitment previously made pursuant to Section 2.5(A) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”B); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1c) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) Company shall not be less entitled to make more than one such request during the term of this Agreement; and (d) each such request shall be in a minimum principal amount of at least $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)25,000,000 and increments of $1,000,000 in excess thereof. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment Such request shall be effective, which shall be made in a date not less than ten (10) Business Days after the date on which such written notice is delivered given to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory Company not less than twenty (20) Business Days prior to the Administrative Agentproposed effective date of such increase, that which notice (a "Commitment Increase Notice") shall specify the Borrower is amount of the proposed increase in compliance with the financial covenants set forth in Section 7.10 based on Aggregate Commitment and the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)proposed effective date of such increase. In the event of such a Commitment Increase Notice, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 Lenders shall be true and correct given the opportunity to participate in all material respects, except the requested increase ratably in proportions that their respective Commitments bear to the extent Aggregate Commitment. No Lender shall have any such representation and warranty obligation to increase its Commitment pursuant to a Commitment Increase Notice. On or prior to the date that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date fifteen (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D15) the proceeds of any Incremental Loans shall be used for general corporate purposes Business Days after receipt of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) Commitment Increase Notice, each Incremental Loan Commitment (and the Incremental Loans made thereunder) Lender shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory submit to the Administrative Agent and a notice indicating the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of maximum amount by which shall be set forth in a Lender joinder agreement):it is willing to increase its
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Increase in Commitments. (a) At The Agent, with the consent of the Company, shall have the right at any time following and from time to time to increase the Closing Date, Total Revolving Credit Commitment hereunder by an amount which is less than or equal to $30,000,000 in the Borrower may aggregate by written notice to the Administrative Agent elect to request the establishment of:
(i) one requesting (which request may be agreed to or more incremental term loan commitments (any declined by such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion) that one or more Lenders increase its respective Revolving Credit Commitment or (ii) by adding to this Agreement one or more financial institutions as a Lender; provided, to provide however, that each such Incremental Loan Commitmentfinancial institution shall be approved by the Company and the Agent. Any Incremental Loan Such increase in the Total Revolving Credit Commitment shall become effective be effectuated pursuant to an agreement with an Increasing Lender or Additional Lender, as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingapplicable, in form and substance reasonably satisfactory to the Administrative Agent, that Company and the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered Agent pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to which (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of an Additional Lender, such Additional Lender shall undertake a Revolving Credit Commitment, which Revolving Credit Commitment shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable an amount at least equal to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan $7,500,000 or any Revolving Loan and except as provided aboveintegral multiple of $500,000 in excess thereof, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(Gy) in the case of each Incremental an Increasing Lender, such Increasing Lender shall increase its Revolving Credit Increase Commitment, which increase in its Revolving Credit Commitment shall be at least equal to $5,000,000 or in integral multiple of $500,000 in excess thereof, and (z) in each case, such Person shall agree to be bound as a Lender under the terms and conditions of this Agreement and the other Loan Documents. Upon the effectiveness of any such agreement and its acknowledgement by the Company and the Agent (the terms date of which any such effectiveness and acknowledgement, an "Increased Commitment Date"), such Additional Lender shall be thereupon become a "Lender" for all purposes of this Agreement with a Revolving Credit Commitment in the amount set forth in a such agreement or, as applicable, the Revolving Credit Commitment of such Increasing Lender joinder shall be increased in the amount set forth in such agreement):, and this Agreement (including the signature page of such Increasing Lender) shall be deemed amended to the extent, but only to the extent, necessary to reflect the addition of such Additional Lender or the increased Revolving Credit Commitment of such Increasing Lender, the resulting adjustment of the Revolving Credit Commitments arising therefrom and the adjustments described in subsection 2.03(e).
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may on one or more occasions, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”)amount not less than $50,000,000; or
(ii) one or more PROVIDED that the aggregate amount of all increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments Section shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)200,000,000. Each such notice shall specify set forth the amount of the requested increase in the total Commitments, and the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 Applicable Percentage 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 on which such notice is delivered of the Company's notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment 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 elect arrange for one or declinemore Persons(any such Person being called an "AUGMENTING LENDER"), which may include any Lender, to extend Commitments, or increase their existing Commitments, as the case may be, in an aggregate amount equal to the unsubscribed amount; PROVIDED that each Augmenting Lender, if not already a Lender hereunder or an Affiliate of such a Lender or an Approved Fund, 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 sole discretion, to provide such Incremental Loan Commitmentstatus as a Lender hereunder. Any Incremental Loan increase in the total Commitments 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.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any increase in the total Commitments pursuant to this Section (the "COMMITMENT INCREASE"), (i) the aggregate principal amount of the Loans outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall become effective as of such Increased Amount Date; provided that:
be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) no Default or Event the product of Default shall exist on (1) such Increased Amount Date before or Lender's Applicable Percentage (calculated after giving effect to (1) any Incremental Loan the Commitment and Increase), multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory product of (1) such Lender's Applicable Percentage (calculated without giving effect to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(bCommitment Increase), as applicable, both before and after giving effect multiplied by (on a pro forma basis2) to (x) any Incremental Loan Commitmentthe amount of the Initial Loans, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(Ciii) each of the representations and warranties contained in Section 6 Augmenting Lender that shall be true and correct in all material respects, except not have been a Lender prior to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty Commitment Increase shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender's Applicable 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 receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the excess of (A) the product of (1) such Non-Increasing Lender's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, over (B) the product of (1) such Non-Increasing Lender's Applicable 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 aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage 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. The deemed payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.17 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result.
(Gc) Increases and new Commitments pursuant to this Section shall become effective on the date specified in the case notice delivered by the Company pursuant to the first sentence of each Incremental Revolving Credit Increase paragraph (a) above.
(d) Notwithstanding the terms foregoing, no increase in total Commitments (or in any Commitment of which any Lender) or addition of an Augmenting Lender shall be become effective under this Section unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 3.02 shall be satisfied and the Administrative Agent shall have received a Lender joinder agreement):certificate to that effect dated such date and executed by the chief financial officer of the Company, and (ii) 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 (f) and (h) of Section 3.01 as to the corporate power and authority of the applicable Borrowers to borrow hereunder after giving effect to such increase.
Appears in 1 contract
Sources: Revolving Credit Agreement (Readers Digest Association Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Company may on one or more occasions, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Revolving Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”)amount not less than $25,000,000; or
(ii) one or more provided that the aggregate amount of the increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with shall not exceed $250,000,000. Such notice shall set forth the Incremental Term Loan Commitments, amount of the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) requested increase in the total aggregate principal amount for all such Incremental Loan Revolving Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 Applicable Percentage 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 on which such notice is delivered of the Company’s notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide by all or a portion of the offered amount (each Lender so agreeing being called an “Increasing Lender”) or decline to increase its applicable Commitment (and any Incremental Loan Commitment may elect 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 declinedeemed to have declined being called a “Non-Increasing Lender”). In the event that, in its sole discretionon the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory agreed pursuant to the Administrative Agentpreceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, that the Borrower is in compliance with the Company may arrange for one or more banks or other financial covenants set forth in Section 7.10 based on the institutions (any such bank or other financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(binstitution being called an “Augmenting Lender”), as applicablewhich may include any Lender, both before and after giving effect (on to extend Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a pro forma basis) to (x) any Incremental Loan CommitmentLender hereunder, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Issuing Bank and the BorrowerSwingline Lender (which approval shall not be unreasonably withheld). The Company, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan each Increasing Lender and except each Augmenting Lender shall execute and deliver such incremental commitment agreement and such other documentation as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and shall reasonably specify to evidence the Borrower;
(G) Commitment of such Increasing Lender or Augmenting Lender and/or its status as a Lender hereunder. Any increase in the case of each Incremental total Revolving Credit Increase (Commitments may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $5,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such increase the sum of the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 285,000,000 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 aggregate amount for each Incremental Loan Commitment (Commitments and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 is delivered to the Borrower and the Administrative Agent. The Borrower may invite any Agent given not more than 10 days after the date of the Borrower's notice, either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender, any Affiliate of ") or decline to increase its Commitment (and any Lender and/or any Approved Fundthat does not deliver such a notice within such period of 10 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, and/or any other Person reasonably satisfactory on the 10th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may, by written notice to the Administrative Agent, request the Administrative Agent to provide an Incremental Loan Commitment arrange for one or more banks or other financial institutions (any such Personbank or other financial institution referred to in this clause being called an "Augmenting Lender"), which may include any Lender, to extend Commitments or increase their existing Commitments in an “Incremental aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender”), if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower, and 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 hereunder. Any proposed Incremental Lender offered increase in the total Commitments may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or approached chooses not to provide all or a portion arrange for, Augmenting Lenders.
(b) On the effective date (the "Increase Effective Date") of any Incremental Loan increase in the total Commitments pursuant to this Section 2.18 (the "Commitment may elect or declineIncrease"), (i) the aggregate principal amount of the loans outstanding (the "Initial Loans") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent in its sole discretion, same day funds an amount equal to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
the difference between (A) no Default or Event the product of Default shall exist on (1) such Increased Amount Date before or Lender's Applicable Percentage (calculated after giving effect to (1the Commitment Increase) any Incremental Loan Commitment and multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory product of (1) such Lender's Applicable Percentage (calculated without giving effect to the Administrative Agent, that Commitment Increase) multiplied by (2) the Borrower is in compliance with amount of the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan CommitmentInitial Loans, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(Ciii) each of the representations and warranties contained in Section 6 Augmenting Lender that shall be true and correct in all material respects, except not have been a Lender prior to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty Commitment Increase shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender's Applicable 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 receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Non-Increasing Lender's Applicable 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 Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the "Subsequent Borrowings") in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (each calculated after giving effect to the Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.14 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result.
(Gc) Increases and new Commitments created pursuant to this Section 2.18 shall become effective on the date specified in the case notice delivered by the Borrower pursuant to the first sentence of each Incremental Revolving Credit Increase paragraph (a) above.
(d) Notwithstanding the terms foregoing, no increase in the total Commitments (or in the Commitment of which any Lender) or addition of a New Lender shall be become effective under this Section unless, (i) on the date of such increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a Lender joinder agreement):certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) 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 the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase.
Appears in 1 contract
Sources: Credit Agreement (Oneida LTD)
Increase in Commitments. (a) At any time following the Closing DateProvided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), the Borrower may from time to time, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Aggregate Commitments to an amount (for all such requests) not exceeding an aggregate additional $80,000,000 of Commitments (any such increase, an “Incremental Revolving Commitment” and, together with in addition to the Incremental Term Loan Commitments, $220,000,000 of Aggregate Commitments on the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”date hereof); provided that (1i) any such request for an increase shall be in a minimum amount of $5 million, and (ii) the total aggregate principal amount for all Borrower may make a maximum of four such Incremental Loan Commitments requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall not also specify (as of any date of incurrence thereofA) exceed $250,000,000 the upfront fee, if any, to be paid to the Lenders which agree to provide the requested increase in Commitments, and (2B) the total aggregate amount for time period within which each Incremental Loan Commitment Lender is requested to respond (and the Incremental Loans made thereunder) which shall not in no event be less than a minimum principal amount five (5) Business Days from the date of $10,000,000 or, if less, the remaining amount permitted pursuant delivery of such notice to the foregoing clause (1Lenders). Each Lender shall notify the Administrative Agent within such notice time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall specify the date (each, an “Increased Amount Date”) on which be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date and each Lender of the Lenders' responses to each request made hereunder. If following such time period the Lenders have not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, agreed to provide an Incremental Loan Commitment the full amount of a requested increase, then the Borrower, at its option, may (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide i) rescind all or a portion of any Incremental Loan Commitment may elect such request made to the existing Lenders under this Section 2.20 and instead invite one or declinemore Eligible Assignees to become a Lender hereunder pursuant to a Joinder Agreement; provided, in its sole discretionhowever, that such Eligible Assignee or Eligible Assignees shall have agreed to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as the full amount of such Increased Amount Date; provided that:requested increase (and shall not receive any upfront fees except as have been offered to the Lenders), (ii) accept the offers made by the existing Lenders or (iii) accept the offers made by the existing Lenders and also invite additional Eligible Assignees to become Lenders pursuant to a Joinder Agreement.
(Ab) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) If the making of any Incremental Loans pursuant thereto;
(B) Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Lenders Borrower shall have received from determine the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to effective date (the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded"Increase Effective Date") and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as final allocation of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty increase. The Administrative Agent shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of promptly notify the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (the Lenders of the final allocation of such increase and the Incremental Loans made thereunder) shall constitute Obligations of Increase Effective Date. As a condition precedent to such increase, the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory deliver to the Administrative Agent and a certificate dated as of the Borrower;
Increase Effective Date (Gfor further distribution to each Lender) in signed by a Responsible Officer of the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Borrower certifying that,
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Increase in Commitments. (ai) At any time following the Closing DateThe Company may, the Borrower may no more than once a year, by written notice to the Administrative Agent elect to substantially in the form of Exhibit G-1, request the establishment of:
Lenders to increase the Aggregate Commitments, which notice shall be accompanied by the resolutions of the board of directors of the Company approving such increase certified by the Secretary or an Assistant Secretary of the Company; provided that in no event shall the Aggregate Commitments be increased by more than US$300,000,000 in the aggregate (ifor all increases pursuant to this Section 2.17) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); orwithout the written consent of all Lenders.
(ii) one Any optional increase shall be permitted only if (i) no Default or more increases in the Revolving Commitments Event of Default has occurred and is continuing and (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1ii) the total aggregate principal amount for all Aggregate Commitments following such Incremental Loan Commitments increase is a multiple of US$5,000,000.
(iii) The Administrative Agent shall not (as of transmit any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant increase request to the foregoing clause (1)Arrangers within one Business Day after its receipt thereof, who shall relay such increase request to each Lender within one Business Day after their receipt thereof. Each such notice shall specify Lender will have the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declineoption, in its sole discretion, to provide subscribe for its Pro Rata Share of such Incremental Loan Commitmentrequested increase. The Lenders shall respond in writing to the Company’s request through the Arrangers within 15 Business Days by submitting a letter in the form of Attachment I to Exhibit G-1. Any Incremental Loan Commitment Lender not responding within 15 Business Days shall become effective as be deemed to have declined to participate in the increase request. At the option of such Increased Amount Date; provided that:
(A) no Default the Company, any part of the increase not so subscribed may be assumed, within 20 Business Days of the Lenders’ response, by one or Event of Default shall exist on such Increased Amount Date before more existing Lenders or after giving effect assumed by other financial institutions designated by the Company and acceptable to (1) any Incremental Loan Commitment each Lender, the Issuing Bank and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that which consents shall not be unreasonably withheld, upon submission of a letter in the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)form of Exhibit G-2, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement)an existing Lender, such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agentor Exhibit G-3, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):new party to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pentair Inc)
Increase in Commitments. (a) At any time following The Company shall have the Closing Dateright, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (so long as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist have occurred and be continuing, without the consent of any Bank (except as described in clause (i) below) but with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), at any time prior to the fifth year anniversary of the Effective Date, to increase the total aggregate amount of the Commitments hereunder by (a) adding a lender or lenders hereto with a Commitment or Commitments up to the amount (or aggregate amount) of any such increase (which lender or lenders shall thereupon become `Banks' hereunder) and/or (b) enabling any Bank or Banks to increase its (or their) Commitment (or Commitments) up to the amount of any such increase; provided, however, that (i) in no event shall any Bank's Commitment be increased without the consent of such Bank, (ii) if any Committed Loans are outstanding hereunder on the date that any such Increased Amount Date before increase is to become effective, the principal amount of all such Committed Loans shall on or prior to the effectiveness of such increase, at the option of the Company, either (A) be repaid, together with accrued interest thereon and any costs incurred by any Bank in accordance with Section 2.15 (but all such Loans may, on the terms and conditions hereof, be reborrowed on the date that any such increase becomes effective pro rata among all of the Banks) or (B) be converted into Negotiated Rate Loans with the same terms (including, without limitation, interest rate) and maturity of such Committed Loans, (iii) if any Letter of Credit is outstanding hereunder on the date that such increase is to become effective, appropriate arrangements shall be made so that, after giving effect to such increase, each Bank's Letter of Credit Exposure is equal to such Bank's Commitment Percentage of the Letter of Credit Exposure of all of the Banks (1and, if such arrangements are not made, such increase may not be made), (iv) in no event shall any Incremental Loan Commitment such increase result in the total aggregate amount of the Commitments exceeding $1,500,000,000 and (2v) no increase in Commitments contemplated by this Section 2.18 shall result in any one Bank hereunder having a Commitment in an amount which equals more than 20% of the making aggregate amount of any Incremental Loans pursuant thereto;
(B) all Commitments hereunder. The Company and the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingBanks agree to use their best efforts to effectuate any such increase, in form and substance reasonably satisfactory subject to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):herein (including, without limitation, by execution and delivery of any appropriate documentation).
Appears in 1 contract
Sources: Credit Agreement (Honeywell Inc)
Increase in Commitments. (a) At The Borrower may at any time following the Closing Dateand from time to time, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders) given not earlier than the 60th day following the Effective Date and not later than the third anniversary of the Effective Date, request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases amount not greater than $250,000,000. Such notice shall set forth the amount of the requested increase in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 shall offer each Lender the opportunity to increase its Commitment by its Participation Percentage of the proposed increased amount. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 20 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide by all or a portion of the offered amount (each Lender so agreeing being called an “Increasing Lender”) or decline to increase its Commitment (and any Incremental Loan Commitment Lender that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or deemed to have declined being called a “Non-Increasing Lender”). No Lender shall have any obligation hereunder to become an Increasing Lender and any election to do so shall be in the sole discretion of each Lender. In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore Lenders or other financial institutions (any such Lender or other financial institution referred to in this paragraph (a) being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Lender hereunder. Any Incremental Loan Commitment Increases and new Commitments created pursuant to this paragraph (a) shall become effective as on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this paragraph.
(b) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under paragraph (a) above unless, (i) on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in paragraphs (Ab) no Default and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the President, a Vice-President or Event a Financial Officer of Default the Borrower, and (ii) the Administrative Agent shall exist on such Increased Amount Date before or have received documents consistent with those delivered under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(c) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to paragraph (a) above (the “Commitment Increase”), (i) the aggregate principal amount of the Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender and each Augmenting Lender that shall have been a Lender prior to the Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) any Incremental Loan such Lender’s Participation Percentage (calculated after giving effect to the Commitment and Increase) multiplied by (2) the making amount of any Incremental Loans pursuant thereto;
the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Participation Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory same day funds an amount equal to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(aproduct of (1) or 7.1(b), as applicable, both before and such Augmenting Lender’s Participation Percentage (calculated after giving effect to the Commitment Increase) multiplied by (on a pro forma basis2) to (x) any Incremental Loan Commitmentthe amount of the Subsequent Borrowings, (yiv) after the making of any Incremental Loans pursuant thereto Administrative Agent receives the funds specified in clauses (with any Incremental Loan Commitment being deemed to be fully fundedii) and (ziii) any Permitted Acquisition consummated in connection therewith;
above, the Administrative Agent shall pay to each Non-Increasing Lender the portion of such funds that is equal to the difference between (CA) each the product of (1) such Non-Increasing Lender’s Participation Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the representations Initial Loans, and warranties contained in Section 6 (B) the product of (1) such Non-Increasing Lender’s Participation Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be true and correct deemed to have made new Borrowings (the “Subsequent Borrowings”) in all material respects, except an aggregate principal amount equal to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes aggregate principal amount of the Borrower Initial Loans and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower Types and shall be secured and guaranteed with for the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth Interest Periods specified in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and the Borrower;
(G) in the case each Augmenting Lender shall be deemed to hold its Participation Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms of which Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above shall be set forth in a Lender joinder agreement):subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Belo Corp)
Increase in Commitments. (a) At any time following the Closing DateIf no Default, Event of Default or Material Adverse Effect shall have occurred and be continuing, the Borrower may at any time during the Availability Period request an increase of the Commitments of up to an additional $50,000,000 (the “Additional Commitment”) by written notice to the Administrative Agent elect to request in writing of the establishment of:
amount of such proposed increase (such notice, a “Commitment Increase Request”); provided, however, that, in the event such Commitment Increase Request is approved as described in paragraph (b) below, (i) one or more incremental term loan commitments (the minimum amount of any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
increase shall be $10,000,000 and (ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with aggregate amount of the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Lenders’ Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 200,000,000.
(b) Any such Commitment Increase Request shall first be made to the Administrative Agent in its capacity as a Lender. The Administrative Agent, as a Lender, may agree to increase its Commitment or not in its sole discretion and (2) shall notify the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount Borrower of $10,000,000 orsuch determination and, if lesssuch request for an increase is approved, the remaining amount permitted pursuant to portion of the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes Additional Commitment that any Incremental Loan Commitment shall will be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to provided by the Administrative Agent, in its capacity as a Lender, within 30 days of the receipt thereof.
(c) In the event the Administrative Agent, in its capacity as a Lender, elects not to provide an Incremental Loan increase its Commitment (any such Personby the full amount of the Additional Commitment, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declinethe Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to provide any Person that is not at such Incremental Loan Commitment. Any Incremental Loan time a Lender (which consent shall not be unreasonably withheld, conditioned or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the opportunity to participate in the remaining portion of the Additional Commitment shall become effective pursuant to paragraph (d) or (e) below, as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) applicable, by notifying the Administrative Agent and such proposed lenders of the opportunity to participate in the remaining portion of such unsubscribed portion of the Additional Commitment.
(d) Any additional bank or financial institution that the Borrower selects to offer participation in the Additional Commitment shall execute and deliver to the Administrative Agent a New Lender Agreement setting forth its Commitment, and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed amended to increase the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Commitment of any New Lender shall have received from be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders or increasing Lenders.
(e) Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall execute a Pro Forma Compliance Certificate demonstratingCommitment Increase Agreement with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 2.01 and the definition of Commitment in Section 1.01 hereof shall be deemed to be amended to reflect such increase. Any Commitment Increase Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders and increasing Lenders.
(f) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes effective, that the Borrower is Administrative Agent shall reflect the increases in compliance with the Commitments effected by such agreements by appropriate entries in the Register.
(g) If any bank or financial covenants set forth in Section 7.10 based on the financial statements most recently delivered institution becomes a New Lender pursuant to Section 7.1(a2.20(c) or 7.1(bany Lender’s Commitment is increased pursuant to Section 2.20(d), as applicable, both before and additional Loans made on or after giving effect the effectiveness thereof (on a pro forma basisthe “Re-Allocation Date”) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct made pro rata based on their respective Commitments in all material respects, effect on or after such Re-Allocation Date (except to the extent that any such representation and warranty is qualified by materiality or reference to Material Adverse Effectpro rata borrowings would result in any Lender making an aggregate principal amount of Loans in excess of its Commitment, in which casecase such excess amount will be allocated to, and made by, such representation New Lender and/or Lenders with such increased Commitments to the extent of, and warranty pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as effected by repayment of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) Loans on the proceeds of any Incremental Loans shall be used for general corporate purposes last day of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) Interest Period applicable thereto or, in the case of each Incremental Term Loan ABR Loans, on the date of such increase, and the making of new Loans of the same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(h) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain outstanding with the terms respective holders thereof until the expiration of which their respective Interest Periods (unless the Borrower elects to prepay any thereof in accordance with the applicable provisions of this Agreement), and interest on and repayments of such Eurodollar Loans will be paid thereon to the respective Lenders holding such Eurodollar Loans pro rata based on the respective principal amounts thereof outstanding.
(i) Upon the effectiveness of any Commitment Increase Agreement, Section 2.09(b), Schedule 2.01 and other pertinent sections hereof shall be set forth in a Lender joinder agreement)automatically and proportionately modified to reflect the increased Commitment, such Incremental Term Loan will mature the exact figures to be agreed between the Borrower and amortize in a manner reasonably acceptable to the Administrative Agent, and all references to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan Commitments shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):deemed amended mutatis mutandis.
Appears in 1 contract
Sources: Credit Agreement (Stewart Information Services Corp)
Increase in Commitments. (ai) At any time following the Closing DateOnce per calendar year (or more frequently as permitted by Agent) Borrower may, the Borrower may by written notice to Agent, request that the Administrative Agent elect Total Commitment Amount be increased by an amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases exceed $125,000,000 in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as increases from the Closing Date until the last day of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 orPeriod, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes provided that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist has occurred and is continuing at the time of such request and on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making date of any Incremental Loans pursuant thereto;
such increase and (B) the Administrative Agent and the Lenders Borrower shall have received from the Borrower delivered to Agent, together with such written notice, a Pro Forma Compliance Certificate demonstratingcopy of Borrower’s duly adopted corporate resolutions, in form and substance reasonably satisfactory to the Administrative Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower is as being true, correct, complete and in compliance with the financial covenants full force and effect. Upon receipt of any such request, Agent shall deliver a copy of such request to each Lender. Borrower shall set forth in Section 7.10 based such request the amount of the requested increase in the Total Commitment Amount (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 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 request and that, in any event, must be at least 90 days prior to the 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 such 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 financial statements most recently 10th day after Agent shall have delivered notice as set forth above, the Increasing Lenders shall have agreed pursuant to Section 7.1(a) 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 7.1(bmore banks or other entities that are acceptable to Agent (each such Person so agreeing being an “Augmenting Lender”), and Borrower and each Augmenting Lender shall execute all such documentation as applicableAgent 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, both before or chooses not to arrange for, Augmenting Lenders, in the full amount.
(ii) Each of the parties hereto agrees that Agent may take any and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the Total Commitment Amount pursuant to this Section, the outstanding Revolving Loans (on a pro forma basisif 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) any Incremental Loan Commitment, by causing the Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders; (y) by permitting the making Loans outstanding at the time of any Incremental increase in the Total Commitment Amount pursuant to this Section 2.10(b) to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such Loans pursuant thereto (other than in accordance with any Incremental Loan their new Commitment being deemed to be fully funded) and Percentages; or (z) by any Permitted Acquisition consummated in connection therewith;
(C) each combination of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):foregoing.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Increase in Commitments. (a) At The Borrower may on one occasion at any time following not later than three months prior to the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases amount that will not result in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (exceeding $500,000,000 minus the amount of any such increase, an “Incremental Revolving Credit Increase” and, together with reduction of the Incremental Term Loans, Commitments pursuant to Section 2.08. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 Applicable Percentage of the proposed increased amount. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 30 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect Lender that does not deliver such a notice within such period of 30 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or declinedeemed to have declined being a “Non-Increasing Lender”). In the event that, in its sole discretionon the 30th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Administrative Agent may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Borrower and the Administrative Agent (which approvals shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Pro Forma Compliance Certificate demonstrating, Lender hereunder. Increases and new Commitments created pursuant to this clause (a) shall become effective on the date specified in form and substance reasonably satisfactory the notice delivered by the Borrower pursuant to the Administrative Agentfirst sentence of this paragraph. Notwithstanding the foregoing, that no increase in the Borrower is total Commitments (or in compliance with the financial covenants set forth in Section 7.10 based Commitment of any Lender) shall become effective under this paragraph unless, (i) on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)date of such increase, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained of the Borrower set forth in Section 6 this Agreement shall be true and correct in all material respectsand no Default shall have occurred and be continuing, except and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (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 the extent any such representation corporate power and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes authority of the Borrower to borrow hereunder after giving effect to such increase and its Subsidiaries (including Permitted Acquisitions);iii) following any such increase pursuant to this Section, no Lender shall have a Commitment representing more than 30% of the total Commitments.
(Eb) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to Section 2.05(a) (the “Commitment Increase”), (i) the aggregate principal amount of the Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Incremental Loan Commitment (Increasing Lender and the Incremental Loans made thereunder) each Augmenting Lender that shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in have been a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable prior to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan Commitment Increase shall be reasonably satisfactory pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the Borrower;
product of (G1) such Lender’s Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender’s Applicable 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 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 Applicable 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 Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the case aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of which each Eurodollar Loan shall be set forth in a Lender joinder agreement):subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Convergys Corp)
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) Provided there exists no Default or Event of Default and prior to the date thereof the Borrower has not made any voluntary reduction of the Aggregate Revolving Credit Commitments, upon not less than five Business Days' prior notice to the Administrative Agent (which shall exist promptly notify the Lenders), the Borrower may, on a one-time basis on any Business Day after the Effective Date, increase the Aggregate Commitments by a principal amount not exceeding the Maximum Increase Amount, provided that such Increased Amount Date before increase with respect to any Facility must be made in a minimum amount of $5,000,000 or after giving effect 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 (1and if to more than one Facility, the amount of the aggregate increase to be allocated to each such Facility), (iii) any Incremental Loan Commitment the identity of those Persons, each of whom meets the definition of an Eligible Assignee (the Borrower's approval being deemed given by inclusion of such Person in such notice), who will be accepting the increase in the Aggregate Commitments (the "Increase Lenders"), (iv) the Facility and the amount of each such Person's commitment, and (2v) the making 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 Incremental Loans such increase, it being understood that no existing Lender will have any obligation to commit to any such increase. In the event that the aggregate commitments from the Increase Lenders exceed either the aggregate proposed increase or the proposed increase for any Facility, the Borrower and the Administrative Agent will mutually determine the identity of those Persons who will become Increase Lenders and the final allocation to each of them. Each Increase Lender that is not a Lender hereunder prior to such time will become a Lender hereunder pursuant thereto;
(B) to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel. The Credit Extension of any increase in the Lenders shall have received from Term Loan A Facility or the Term Loan B Facility hereunder will be made in a manner, and upon the satisfaction of conditions, reasonably similar to those required for the Credit Extension of the Term Loan B Facility with appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
(b) As a condition precedent to such increase, the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory shall deliver to the Administrative AgentAgent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, that and (ii) in the Borrower is in compliance with case of the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)Borrower, as applicablecertifying that, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (yA) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article V and the other Loan Documents are true and correct in all material respectson and as of the Increase Effective Date, except to the extent any that such representation representations and warranty is qualified by materiality or reference warranties specifically refer to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, in which representation and warranty shall remain case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b);, respectively, of Section 6.01, and (B) no Default or Event of Default exists or would result from such increase (giving pro forma effect thereto).
(Dc) Upon the proceeds exercise of any Incremental Loans shall be used for general corporate purposes of this Section 2.15, and as conditions to the Borrower and its Subsidiaries effectiveness thereof, (including Permitted Acquisitions);
(Ei) each Incremental Loan Commitment (Increase Lender will make those representations and the Incremental Loans warranties made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed by an Eligible Assignee in connection with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement)an assignment pursuant to Section 10.07, such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, (ii) each Guarantor will reaffirm its obligations under the Incremental Lenders making such Incremental applicable Guaranty in connection with the increased principal amount of the applicable Facilities, and (iii) the amortization of the Term Loan A Facility pursuant to Section 2.08 will be adjusted as necessary to provide at each date set forth therein for a payment of principal in an amount which is a percentage of the Outstanding Amount of the Term Loan A after its increase as provided in this Section 2.15 that is equal to the ratio determined by the payment set forth opposite such date as of September 2, 2003 to the Outstanding Amount of the Term Loan A on September 2, 2003.
(d) In the event that any amount of the increase in the Aggregate Commitments is to be to the Term Loan B Facility (the "TLB Increase Amount"), the Applicable Margin for Eurodollar Rate Segments and Base Rate Segments of the BorrowerTLB Increase Amount shall be equivalent to the Applicable Margin then applicable to Eurodollar Rate Segments and Base Rate Segments of the then existing Term Loan B; provided, but will not however, in any the event have a shorter weighted average life the Applicable Margin required successfully to maturity arrange the TLB Increase Amount (the "TLB Increase Amount Applicable Margin") is greater than the remaining weighted average life Applicable Margin then applicable to maturity of any prior Incremental the Term Loan or a maturity date earlier than B, then the latest Termination Date then in effect for any prior Incremental Applicable Margin with respect to the entire Term Loan B, including the TLB Increase Amount, shall be increased to equal the TLB Increase Amount Applicable Margin effective as of the effective date of the TLB Increase Amount; provided further that if the TLB Increase Amount is issued at a discount or any Revolving Loan and except as provided abovewith payment of fees, all other terms and conditions applicable to any Incremental the Term Loan B Lenders of the then existing Term Loan B shall be reasonably satisfactory compensated in an economically equivalent manner. It is understood that any increase in the Applicable Margin pursuant to the Administrative Agent first proviso in the preceding sentence and any compensation to be made in connection with a discount or fee paid with respect to the Borrower;TLB Increase Amount shall only apply to the Term Loan B Facility on and after the Increase Effective Date.
(Ge) This Section 2.15 shall supersede any provisions in Sections 2.14 or 10.01 to the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Increase in Commitments. (a) At any time following the Closing Date, the 2.7.1. Borrower may by written notice to the Administrative Agent elect (each, an “Increase Notice”), seek an increase to request the establishment of:
existing (i) one or more incremental term loan commitments Term Loan Commitment (any such incremental term loan commitment, each an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, and each Term Loan provided thereunder in accordance with the terms and conditions of this Section 2.7.1, an “Incremental Term Loan”); or
) or (ii) one or more increases Revolving Commitment (each an “Incremental Revolving Loan Commitment”, and each additional Revolving Loan provided thereunder in accordance with the Revolving Commitments (any such increaseterms of conditions of this Section 2.7.1, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsLoan”) by an amount not in excess of $35,000,000 in the aggregate (of which not more than $5,000,000 may consist of increases to make additional revolving credit loans under this Agreement (the Revolving Loan Commitment), so long as, on a pro forma basis on the date of incurrence, immediately after giving effect to the incurrence of any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not Commitment (as assuming the full amount of any date such concurrently established Incremental Revolving Commitment is drawn) and after giving effect to any transactions consummated in connection therewith, (x) the Total Debt to EBITDA Ratio for the most recently completed fiscal quarter with respect to which the Administrative Agent has received financial statements pursuant to Section 10.1.2, shall be equal to or less than the lesser of incurrence thereof(1)(A) exceed $250,000,000 4.25 to 1.00 with respect to any Incremental Loan the proceeds of which will be used to fund a Permitted Dividend or (B) 5.25 with respect to any Incremental Loan the proceeds of which will be used for a purpose permitted by Section 2.7.2(iv) other than Permitted Dividends and (2) the total aggregate applicable compliance level for the most recently ended Fiscal Quarter less 0.25 and (y) with respect to any Incremental Loan the proceeds of which will be used to fund a Permitted Dividend, EBITDA shall be at least $32,000,000 calculated for the trailing twelve (12)-month period ending on the last day of the most recently completed fiscal quarter with respect to which the Administrative Agent has received financial statements pursuant to Section 10.1.2. Administrative Agent shall promptly deliver a copy of such Increase Notice to each Lender. Each such Increase Notice shall specify (i) the amount for each of the requested Incremental Revolving Loan Commitment or Incremental Term Loan Commitment, as applicable, and (ii) the date on which the Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not is intended to be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date effective (each, an “Increased Amount Increase Effective Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective), which shall be a date not less than ten (10) 10 Business Days after the date on which such notice Increase Notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory Agent (or such shorter time period as agreed to the in writing by Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”).
2.7.2. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Such Incremental Loan Commitment shall become effective as of such Increased Amount Increase Effective Date; provided thatso long as the following terms are satisfied:
(Ai) both immediately before and after giving effect to such Incremental Loan Commitment, no Event of Default shall have occurred and be continuing;
(ii) no Default or Event of Default shall exist on as of the date of funding of such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant theretoLoan;
(Biii) as certified by an authorized officer of the Administrative Agent Borrower, all representations and warranties of Borrower and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants other Loan Parties set forth in Section 7.10 based on this Agreement and the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)other Loan Documents are true and correct in all material respects with the same effect as if then made, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making without duplication of any Incremental Loans pursuant thereto “materiality” or “Material Adverse Effect” qualifiers (with any Incremental Loan Commitment being deemed except to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the extent such representations and warranties contained expressly relate to a specific earlier date, in Section 6 which case such representations and warranties shall be true and correct in all material respects, except to the extent respects (without duplication of any such representation and warranty is qualified by materiality “materiality” or reference to “Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct ” qualifiers) as of such earlier date)) as of the Increase Effective Date;
(Div) the proceeds of any such Incremental Term Loans shall be used solely to fund Capital Expenditures, Investments, Permitted Acquisitions and Permitted Dividends, in each case to the extent permitted hereunder and the proceeds of such Incremental Revolving Loans shall be used for working capital and general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions)needs;
(Ev) each the initial “yield” (including any original issue discount or similar yield-related discounts, deductions or payments, but excluding any customary arrangement, structuring, underwriting, amendment or similar fees in connection therewith that are not paid to all of the Lenders of such Incremental Loan Commitment (and Commitment) of the Incremental Loan Commitments shall be no greater than one-half percent (0.50%) per annum higher than the combined “yield” for the Term Loans made thereunder) shall constitute Obligations (including any prior Incremental Term Loans), respectively, provided however, the Borrowers may request an increase of the Borrower and “yield” on the Term Loans in order to comply with this clause (v), which Administrative Agent shall be secured and guaranteed with the other Extensions of Credit on a pari passu basisapprove;
(Fvi) the maturity date of the Incremental Term Loans shall be as set forth in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement)Joinder Agreement; provided that, such Incremental date shall not be earlier than the Term Loan will mature and amortize in a manner reasonably acceptable to Maturity Date;
(vii) the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be equal to the weighted average life to maturity of the Term Loans (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of Term Loans prior to such date of determination);
(viii) the Incremental Term Loans shall rank pari passu in right of payment and rank pari passu in right of security with the Obligations;
(ix) the terms and provisions of additional Revolving Loans made under any Incremental Revolving Commitment shall be identical to those of the existing Revolving Loans;
(x) shall not be secured by property other than the Collateral or be incurred or guaranteed by any Person other than a Loan Party; and
(xi) Administrative Agent shall have provided its prior written consent with respect to any Incremental Loan Commitment, to be granted or denied in the Administrative Agent’s sole discretion.
2.7.3. The Borrower agrees that no Lender shall have any obligation to provide an Incremental Loan Commitment. No Incremental Loan Commitment shall become effective until all existing and/or new Lenders committing to such Incremental Loan Commitment have delivered to Administrative Agent a writing in form reasonably satisfactory to Administrative Agent pursuant to which such existing Lenders and/or new Lenders state the amount of their Incremental Term Loan Commitment, or Incremental Revolving Loan Commitment, as applicable, and agree to assume and accept the obligations and rights of a Lender hereunder; provided that no new Lenders may become Lenders hereunder or commit to provide any of the Incremental Loan Commitment except with the prior written consent of the Administrative Agent, to be granted or denied in the Administrative Agent’s sole discretion. Upon the Increase Effective Date, pursuant to this Section 2.7, Annex A shall be deemed amended and replaced with a new Annex A reflecting the new Commitments hereunder and, to the extent the pricing on the Term Loans is increased pursuant to this Section 2.7, the definition of Applicable Margin and any other relevant definitions shall be deemed amended to reflect such pricing increase.
2.7.4. At least five (5) Business Days prior to the applicable Increase Effective Date, the Borrower Representative shall provide Administrative Agent with a written offer to the Lenders (which offer Administrative Agent shall promptly deliver to the Lenders) to commit to the applicable Incremental Term Loan Commitment, (i) first on a pro rata basis to Lenders, which each Lender may in its sole and absolute discretion accept or decline (it being understood that any Lender not affirmatively committing in writing to its pro rata portion, within five (5) Business Days after the delivery thereof, shall be deemed to have declined) and (ii) second, if any Lender has declined its pro rata share or any part thereof, such remaining amounts on a non-pro rata basis to the Lenders accepting their pro rata share of such requested Incremental Term Loan Commitment. Within five (5) Business Days of Administrative Agent’s receipt of such offer from Borrower, Administrative Agent shall deliver to Borrower written notice from any Lenders committing to the requested Incremental Loan Commitment pursuant to which such Lenders shall state the amount of their Incremental Term Loan Commitment or Incremental Revolving Loan Commitment, as applicable. If following the application of the two immediately preceding sentences, some or all of the Lenders do not agree to fund the entire requested Incremental Loan Commitment, Borrower may propose new lender(s), which new lender(s) must be a Person which would be an eligible assignee pursuant to Section 15.6 hereof, to which Borrower proposes to offer the remaining requested Incremental Term Loan Commitment and request Administrative Agent’s consent (within three (3) Business Days following receipt of such request, Administrative Agent shall provide written notice to Borrower indicating that such proposed new lender(s) is or is not acceptable to Administrative Agent (which consent shall be provided or withheld at the sole discretion of the Administrative Agent).
2.7.5. Other than with respect to pricing, margins, interest rate floors, fees and original issue discount, amortization and maturity date (which may be later but not before), the terms and provisions of any Incremental Term Loans shall be identical to the Term Loans existing immediately prior to giving effect to any such Incremental Term Loan; provided that representations, warranties, covenants and events of default with respect to such Incremental Term Loan may be inconsistent with the Term Loans (including all prior Incremental Term Loans) so long as, if any such representation, warranty, covenant or event of default is in addition to, or more restrictive than, those applicable to the Term Loans (including all prior Incremental Term Loans), either (x) such Term Loans shall receive the benefit of any such additional or more restrictive representation, warranty, covenant or event of default or (y) such representations, warranties, covenants or events of default shall be effective after the maturity date applicable to the Term Loans (including all prior Incremental Term Loans).
2.7.6. Unless otherwise specifically provided herein, all references in the Loan Documents (a) to Term Loans shall be deemed, unless the context otherwise requires, to include references to Incremental Term Loans and (b) to Revolving Loans shall be deemed, unless the context otherwise requires, to include references to any additional Revolving Loans provided under any Incremental Revolving Commitment.
2.7.7. Any amendments to this Agreement or any other Loan Document to reflect the incurrence of and terms and conditions of any Incremental Loans in accordance with the terms and conditions hereof, shall require the approval of Administrative Agent and participating Lenders but shall not require the Borrower;
(G) in the case of each approval any Lenders not providing any such Incremental Revolving Credit Increase (the terms of which Loans or Incremental Term Loans, as applicable.
2.7.8. The Incremental Loan Commitments and Incremental Loans shall be set forth in a Lender joinder agreement):entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Collateral Documents.
Appears in 1 contract
Increase in Commitments. (a) At any time following and from time to time prior to the Closing Maturity Date, the Borrower may Company may, by written notice to the Administrative Agent elect (which the Administrative Agent shall promptly furnish to each Lender), request the establishment of:
(i) that one or more incremental term loan commitments Persons (any which may include the then-existing Lenders) (A) offer to increase their Revolving Credit Commitments or to make additional Revolving Credit Commitments (if they are not already Lenders) (such incremental term loan commitment, an increased and/or additional Revolving Credit Commitments being a “Incremental Term Loan CommitmentRevolving Credit Commitment Increase”) to make or (B) enter into one or more tranches of term loans (any such additional term loans, loans being an “Incremental Term Loan” and together with any Revolving Credit Commitment Increases, a “Commitment Increase”) under this paragraph (a), it being understood that (x) 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) and (y) the Company may agree to accept less than the amount of any Commitment Increase so requested; or
provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the offered Commitment Increase. The minimum aggregate principal amount of any Commitment Increase shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Commitment Increases pursuant to this paragraph (a) exceed $250,000,000. The Company may arrange for one or more increases banks or other financial institutions, which may include any Lender, to extend Revolving Credit Commitments, increase their existing Revolving Credit Commitments or provide Incremental Term Loans in an aggregate amount equal to the amount of the Commitment Increase. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and any other Applicable Agent shall execute and deliver an appropriate amendment to this Agreement, which amendment shall specify, among other things, the procedures for reallocating any outstanding Revolving Credit Exposure (as applicable). The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with Loans and the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, (b) shall not mature earlier than the “Incremental Maturity Date (but may partially amortize prior to such date) and (c) shall be treated substantially the same hereunder as (and in any event no more favorably than) the Revolving Loans ”)and the Term Loans; provided that (1i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term Loans may be priced differently (which pricing shall be deemed to include any upfront fees, original issue discount, arrangement fees and any similar fees in connection therewith) than the pricing applicable to the Revolving Loans and the Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment 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 reasonable opinion of the Company and the Administrative Agent, to effect the provisions of this Section 2.09. Notwithstanding anything to the contrary set forth herein, the Agents shall have at least 15 Business Days, but no more than 20 Business Days, prior to the proposed effective date for such an increase to obtain administrative details from Lenders increasing their Commitments or Persons becoming new Lenders hereunder and to otherwise administer such increase, including processing Borrowing Requests and determining whether breakage amounts, if any, will be required to be paid by the Borrowers. No such increase shall be reasonably satisfactory effective until such administration period has expired.
(b) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this Section 2.09 unless on the proposed date of the effectiveness of such Commitment Increase (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Company that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrowers to borrow hereunder after giving effect to such Commitment Increase; provided that delivery of a certificate by a Financial Officer of the Company certifying that the resolutions entered into by the Company and its Subsidiaries and delivered to the Administrative Agent pursuant to Section 4.01(d) are in full force and effect on the Borrower;
date thereof and that such resolutions have not been modified, rescinded or amended shall be deemed sufficient evidence of power and authority to incur any Commitment Increase hereunder (G) and any Loans thereunder). Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the case part of each Incremental any Lender to increase its Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Increase in Commitments. (a) At If at any time following the Closing DateCommitments shall be less than $500,000,000, the Borrower may may, by written request to the Administrative Agent, request that the Lenders increase the Commitments hereunder in such amount that, when added together with the then- outstanding Commitments, shall not exceed $500,000,000, which amount shall be an integral multiple of $10,000,000; provided that, on and as of the Increase Date (as defined below), (i) if the aggregate commitments under the Other Credit Agreement are less than $500,000,000, then such aggregate commitments shall be increased accordingly to preserve the ratio of the aggregate commitments under the Other Credit Agreement to the sum of (A) the Commitments hereunder plus (B) the aggregate commitments under the Other Credit Agreement, and (ii) no Event of Default or Unmatured Default has occurred and is continuing. Such increase shall be effective as of a date which shall be any Business Day occurring not less than 25 days (unless otherwise agreed to by the Borrower and the Administrative Agent) nor more than 30 days from the date of such written request (such date herein referred to as the "INCREASE DATE"). Upon receipt of written notice of such request from the Administrative Agent, each Lender shall have the opportunity, in its sole discretion, no later than 20 days after the date on which the Borrower's request shall have been received by the Administrative Agent, to commit to increase its Commitment by written notice to the Administrative Agent elect setting forth the amount by which such Lender proposes to increase its Commitment (each such Lender an "EXISTING LENDER"). To the extent that the aggregate amount of the proposed increases is less than the aggregate amount of the increase requested by the Borrower, the Borrower may either (x) request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Administrative Agent to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more solicit the Lenders for further increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan their respective Commitments, (y) amend the “Incremental Loan Commitments”) original request by reducing the amount by which the Commitments are requested to make additional revolving credit loans under this Agreement (any such increase, be increased to an “Incremental Revolving Credit Increase” and, together with amount equal to the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment of the proposed increases of the Commitments or (and the Incremental Loans made thereunderz) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes request that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole reasonable discretion, to provide accept the participation in the proposed increase of one or more additional financial institutions (each an "ADDITIONAL LENDER"), provided that the minimum commitment of each such Incremental Loan CommitmentAdditional Lender equals or exceeds $10,000,000. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) If the Administrative Agent shall accept the proposed increases of the Existing Lenders and the Lenders Additional Lenders, the Commitments shall have received from be increased by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each aggregate amount of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made proposed increases on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty the Increase Date. The Administrative Agent shall remain true and correct as of such earlier date);
(D) allocate the proceeds of any Incremental Loans shall be used for general corporate purposes of increased amount pro rata among the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (Existing Lenders and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed Additional Lenders in accordance with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):their respective Commitments.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateProvided there exists no Default, the Borrower may by written upon notice to the Administrative Agent elect (which shall promptly notify the Banks), the Borrower may from time to time, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Commitments by an amount (any for all such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”requests) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)not exceeding $250,000,000; provided that (1i) any such request for an increase shall be in a minimum amount of $25,000,000, and (ii) the total aggregate principal amount for all Borrower may make a maximum of three such Incremental Loan Commitments requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall not specify the time period within which each Bank is requested to respond (as of any which shall in no event be less than ten Business Days from the date of incurrence thereofdelivery of such notice to the Banks).
(b) exceed $250,000,000 Each Bank shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Bank not 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 Bank of the Banks’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) which approval shall not be less than a minimum principal amount of $10,000,000 or, if lessunreasonably withheld or delayed), the remaining amount permitted Borrower may also invite additional Eligible Assignees to become Banks pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, joinder agreement in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel.
(d) If the Commitments are increased in accordance with this Section, that the Administrative Agent and the Borrower is shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Banks of the final allocation of such increase and the Increase Effective Date. No consent of any Bank (other than the Banks participating in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered such increase) shall be required for any such increase pursuant to this Section 7.1(a2.03.
(e) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Bank) signed by a Responsible Officer (x) certifying and attaching the resolutions approving or 7.1(b)consenting to such increase, as applicable, both and (y) certifying that immediately before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (yA) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article 4 and the other Loan Documents are true and correct in all material respectsrespects on and as of the Increase Effective Date, except to the extent any that such representation representations and warranty is qualified by materiality or reference warranties specifically refer to Material Adverse Effectan earlier date, in which case, such representation and warranty shall be case they are true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct material respects as of such earlier datedate and (B);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the General Administrative Agent elect from time to time (which notice the General Administrative Agent shall promptly forward to the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (Commitment of any such incremental term loan commitment, Class be increased by an “Incremental Term Loan Commitment”) amount not to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with exceed the Incremental Term Loan Commitments, Facility Amount at such time. Such notice shall set forth the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement amount of the requested increase (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments which shall not (as be in minimum increments of any date of incurrence thereof) exceed $250,000,000 1,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if lessor equal to the remaining Incremental Facility Amount), the remaining amount permitted pursuant to Class or Classes of the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after requested increase 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 is delivered and which, in any event, must be on or prior to the Maturity Date), and shall offer each Lender (other than a Defaulting Lender) of the affected Class the opportunity to increase its Commitment by its Applicable Percentage of such Class of the proposed increased amount. Each Lender (other than a Defaulting Lender) of the affected Class shall, by notice to the Company and the General Administrative Agent given not more than 10 days after the date of the General Administrative Agent. The Borrower may invite any Lender’s notice, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory either agree to the Administrative Agent, to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or declinebeing deemed to have declined being a “Non-Increasing Lender”). In the event that, in its sole discretionon the 10th day after the General Administrative Agent’s notice, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory agreed pursuant to the Administrative Agentpreceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Company, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) Company may arrange for one or 7.1(bmore banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender (other than a Defaulting Lender), to extend Commitments or increase their existing Commitments of the affected Class in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agents (which approval shall not be unreasonably withheld), and the Borrowers and each Augmenting Lender shall execute all such documentation as applicable, both before and after giving effect (on the General Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a pro forma basis) to (x) any Incremental Loan Commitment, (y) Lender hereunder. Any increase in the making Commitments of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to Class may be fully funded) and (z) any Permitted Acquisition consummated made in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty an amount which is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity less than the remaining weighted average life increase requested by the Company if the Company is unable to maturity of any prior Incremental Term Loan arrange for, or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided abovechooses not to arrange for, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Augmenting Lenders.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided Provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist then exist, upon notice to, and with the consent of, the Administrative Agent (not to be unreasonably withheld), the Borrower may from time to time increase the Aggregate Commitment Amount by (i) requesting that one or more Lenders increase its or their respective Commitments or (ii) inviting one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments hereunder, provided that, in either case, the Borrower shall not exercise its rights under this Section 2.04 on more than three separate occasions and the minimum amount by which the Aggregate Commitment Amount shall be increased shall not be less than $75,000,000 (unless the excess of the Maximum Commitment Amount over the Aggregate Commitment Amount in effect immediately prior to any such Increased increase in Commitments is less than $75,000,000, in which case the Borrower may request an increase in the amount of such excess), and further provided that the Aggregate Commitment Amount Date before or after giving effect to any such increase shall not exceed the Maximum Commitment Amount. For the avoidance of doubt, it is agreed that the Administrative Agent may withhold its consent to the Borrower’s exercise of the foregoing right as to any particular existing Lender or additional Lender based on the amount of the requested increase in such existing Lender’s or additional Lender’s Commitment or the Administrative Agent’s assessment of the credit worthiness of such existing Lender or additional Lender.
(1a) If the Borrower has requested that all of the Lenders increase their respective Commitments pro rata, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond to such request (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within the specified time period whether or not such Lender agrees to increase its respective Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase in the Aggregate Commitment Amount (based on the Aggregate Commitment Amount then in effect). Any Lender not responding within such specified time period shall be deemed to have declined to increase its respective Commitment. Anything herein contained to the contrary notwithstanding, no Lender shall have any Incremental Loan obligation whatsoever to increase its respective Commitment hereunder and (2) the making Borrower shall have no obligation to request a pro rata increase in the Commitments of all Lenders or to offer to increase the Commitment of any Incremental Loans particular Lender. The consent of the Lenders shall not be required in order for any Lender to increase its Commitment or for one or more additional financial institutions to become Lenders party to the Agreement and to provide additional Commitments pursuant thereto;to this Section 2.04.
(Bb) If the Aggregate Commitment Amount is increased in accordance with this Section 2.04, the Administrative Agent and the Lenders Borrower shall have received from determine the effective date of such increase (the “Additional/Increased Commitment Effective Date”). The Administrative Agent and the Borrower a Pro Forma Compliance Certificate demonstratingshall promptly notify the Lenders of the final allocation of such increase and the Additional/Increased Commitment Effective Date. Each existing Lender that increases its Commitment and each additional Lender, in form if any, and substance reasonably satisfactory the Borrower shall execute and deliver to the Administrative AgentAgent (which the Administrative Agent shall also execute to acknowledge its acceptance thereof) a certificate substantially in the form of Exhibit B hereto (an “Additional/Increased Commitment Certificate”). Upon receipt by the Administrative Agent of Additional/Increased Commitment Certificates from existing Lenders or additional Lenders, that if any, in an amount sufficient to effectuate the increase requested by the Borrower: (1) the Aggregate Commitment Amount shall be increased, (2) the Administrative Agent shall amend and distribute to the Borrower is in compliance with and the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) Lenders a revised Schedule 2.01 adding or 7.1(b)amending, as applicable, both the Commitment(s) of any Lender executing the Additional/Increased Commitment Certificate and the increased Aggregate Commitment Amount (which shall be deemed incorporated into, and made a part of, this Agreement), (3) each additional Lender shall be deemed to be a party in all respects as of the Additional/Increased Commitment Effective Date to this Agreement and the other Loan Documents to which the Lenders are party and (4) upon the Additional/Increased Commitment Effective Date, any increasing or additional Lender party to the Additional/Increased Commitment Certificate shall purchase from each of the (other) Lenders party to the Agreement immediately prior to the Additional/Increased Commitment Effective Date a pro rata portion of all outstanding Loans (and participation interests in Letters of Credit) of each such (other) Lender such that each Lender (including any additional Lender, if any) shall hold its ratable share of all outstanding Loans (and participation interests in Letters of Credit) after giving effect to its increased or additional Commitment and the resulting increase in the Aggregate Commitment Amount, provided that the Borrower shall pay any amounts due under Section 2.16 to the extent that any such purchase gives rise to the costs indemnified thereby, and any other amounts due under Section 9.03.
(c) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional/Increased Commitment Effective Date (in sufficient copies for each Lender) signed by an officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, (ii) including a certificate of the type described in Section 5.01(c) demonstrating pro forma compliance with Section 6.09 after giving effect to such increase and (iii) certifying that, before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article III are true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of the Additional/Increased Commitment Effective Date and no Default or Event of Default exists. The Borrower shall execute and deliver replacement notes if requested in accordance with Section 2.10(e) reflecting such date (except for any such representation and warranty that by its terms is made only Lender’s Commitment, which notes shall be dated as of an earlier date, which representation and warranty shall remain true and correct as the date of such earlier date);this Agreement.
(Dd) the proceeds of This Section shall supersede any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) provision in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Section 9.02 to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or On no more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date two dates (each, an “"Increased Amount Commitment Date”") occurring on which or before the Borrower proposes that any Incremental Loan Commitment shall be effectivesecond anniversary of the Effective Date, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective and so long as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form occurred and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, be continuing both before and after giving effect to an increase in the Total Commitment described in this Section 2.10, the Total Commitment may, upon the request of the Company and subject to the terms and conditions of this Section 2.10, be increased either by one or more new banks establishing Commitments or by one or more then-existing Banks increasing their Commitments (on such increase by either means, a pro forma basis"Total Commitment Increase"); PROVIDED, THAT, (i) the Company shall give a written notice (the "Increase Request Notice") to the Administrative Agent specifying the total amount of the increase being requested on such Increased Commitment Date (xwhich, together with any previous increase pursuant to this Section 2.10, shall not be in excess of $500,000,000) any Incremental Loan Commitmentand the terms and conditions that will be applicable thereto, whether the same or different than the terms and conditions applicable to then-existing Commitments and Loans made thereunder, (yii) promptly after receipt of the making Increase Request Notice, the Administrative Agent shall notify each Bank of any Incremental Loans pursuant thereto the contents thereof, (iii) each Bank shall (within the time frame to be agreed upon by the Administrative Agent and the Company) notify the Administrative Agent in writing of its willingness, if any, to accept a participation in the requested increase on the terms specified by the Company and the maximum amount, if any, of the requested Total Commitment Increase in which it is willing to participate (with any Incremental Loan Commitment Bank so accepting, an "Accepting Bank"), (iv) upon receipt of each response from the Banks (with any Bank failing to so respond within the time specified being deemed to have declined to accept any participation in the requested increase), the Administrative Agent shall notify the Company thereof and such Total Commitment Increase shall be fully funded) allocated, at the discretion of the Administrative Agent after consultation with the Company, to each Accepting Bank and to one or more new lenders (each, a "New Bank", and with the Accepting Banks, the "Additional Banks"), as designated by the Company with the consent of the Administrative Agent and (zv) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty that the final sentence of this Section 2.10 is qualified by materiality or reference to Material Adverse Effectapplicable, in which caseupon the Increased Commitment Date, such representation and warranty each Accepting Bank's Commitment shall be true and correct increased in all respects, on such Increased Amount Date accordance with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier dateforegoing, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans each New Bank shall be used deemed a Bank for general corporate all purposes hereof with a Commitment established in accordance with the foregoing and the Commitment Percentage of all Banks, including the Accepting Banks and New Banks, shall automatically be deemed adjusted to reflect the new Commitment levels of each Bank. The loans incurred by the Company pursuant to the Total Commitment Increase shall bear interest at market rates of interest as agreed by the Company, the Additional Banks and the Administrative Agent and shall have a final maturity no earlier than the Commitment Termination Date. Notwithstanding the foregoing, at the option of the Borrower Company, the Additional Banks and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Total Commitment Increase, and the BorrowerCommitments and Loans to be established and made thereunder, but will not in any event have may be structured as a shorter weighted average life to maturity than separate tranche of commitments and loans under this Agreement (the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than "INCREMENTAL TRANCHE"), whereupon the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided aboveBanks agree that the Company, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in Additional Banks may enter into an amendment to this Agreement without the case consent of each Incremental Revolving Credit Increase (any other Bank to the extent, but solely to the extent, reasonably deemed necessary by the Administrative Agent to establish the terms and conditions relating to the interest rate, fee pricing, term, repayment and prepayment provisions with respect to such Incremental Tranche under this Agreement, PROVIDED, THAT, in any event such Incremental Tranche shall not have a final maturity earlier than the Commitment Termination Date and shall not have any required amortization prior to the Commitment Termination Date in effect immediately prior to the Increased Commitment Date unless the average weighted life to maturity of which shall be set forth in a Lender joinder agreement):such Incremental Tranche is equal to or greater than the average weighted life to maturity of the Loans immediately prior to the Increased Commitment Date.
Appears in 1 contract
Sources: Credit Agreement (CSC Holdings Inc)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $25,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such increase the sum of the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 150,000,000 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 requested increase in the total aggregate amount for each Incremental Loan Commitment (Commitments and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 10 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment 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 Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and each Issuing Bank (which approvals shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:increase in the total Commitments may be made in an amount which 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.
(Ab) no Default or Event On the effective date (the “Increase Effective Date”) of Default any increase in the total Commitments pursuant to this Section 2.20 (the “Commitment Increase”), if any Revolving Loans are outstanding, the Borrower (i) shall exist on prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such Increased Amount Date before or prepayment by simultaneously borrowing Revolving Loans of the Types and for the Interest Periods specified in a Borrowing Request delivered pursuant to Section 2.03, which Revolving Loans shall be made by the Lenders (including the Increasing Lenders and the Augmenting Lenders, if any) ratably in accordance with their respective Commitments (calculated after giving effect to the Commitment Increase). The payments made pursuant to clause (1i) above in respect of each Eurodollar Loan shall be subject to indemnification by the 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.
(c) Increases and new Commitments created pursuant to this Section 2.20 shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of paragraph (a) above; provided that the Borrower may, with the consent of the Administrative Agent (such consent not to be unreasonably withheld), extend such date by up to 30 days by delivering written notice to the Administrative Agent no less than three Business Days prior to the date specified in the notice delivered by the Borrower pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Incremental Loan Commitment Lender) or addition of an Augmenting Lender shall become effective under this Section unless, (i) on the date of such increase, the conditions set forth in paragraphs (a) and (2b) of Section 4.02 shall be satisfied and the making Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of any Incremental Loans pursuant thereto;
the Borrower, and (Bii) the Administrative Agent and the Lenders shall have received from (with sufficient copies for each of the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance Lenders) documents consistent with the financial covenants set forth in Section 7.10 based those delivered on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect Effective Date under clauses (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully fundedb) and (zc) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):4.01.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing Date, the Borrower may by written Upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), the Borrower may from time to time, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Commitments Total Commitment by an amount (any for all such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”requests) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)not exceeding $250,000,000; provided that (1i) any such request for an increase shall be in a minimum amount of $50,000,000, and (ii) the total aggregate principal amount for all Borrower may make a maximum of three such Incremental Loan Commitments shall not requests. At the time of sending such notice, the Borrower (as of any date of incurrence thereof) exceed $250,000,000 and (2) in consultation with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunderAdministrative Agent) shall not specify the time period within which each Lender is requested to respond (which shall in no event be less than a minimum principal ten Business Days from the date of delivery of such notice to the Lenders).
(b) Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Commitment Percentage of such requested increase. Any Lender not 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 $10,000,000 or, if less, the remaining amount permitted pursuant a requested increase and subject to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate approval of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders Fronting Bank (which approvals shall have received from not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a Pro Forma Compliance Certificate demonstrating, joinder agreement in form and substance reasonably satisfactory to the Administrative Agent, that Agent and its counsel.
(d) Any increase in the Borrower is Total Commitment shall be subject to the following conditions precedent: (i) as of the proposed effective date of the increase in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before Total Commitment and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the all representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any respects as though made on such date (unless such representation and warranty is qualified by materiality or reference to Material Adverse Effectmade as of a specific date, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date date) and no event shall have occurred and then be continuing which constitutes a Default or Event of Default; (except for any such representation ii) the Borrower, the Administrative Agent and warranty that by its terms is made only as of an earlier date, each Eligible Assignee which representation and warranty shall remain true and correct as have agreed to provide a “Commitment” in support of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) increase in the case of each Incremental Term Loan (the terms of which Total Commitment, shall be set forth have executed and delivered a joinder agreement in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner form reasonably acceptable to the Administrative Agent; (iii) to the extent reasonably required by the Administrative Agent, counsel for the Incremental Lenders making such Incremental Term Loan Borrower shall have provided to the Administrative Agent a supplemental opinion in form and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be substance reasonably satisfactory to the Administrative Agent; (iv) the Lenders and any Eligible Assignee(s) shall otherwise have executed and delivered such other instruments and documents as the Administrative Agent shall have reasonably requested in connection with such increase; (v) the Borrower shall have executed and delivered all corporate authority documents that the Borrower;
Administrative Agent shall have reasonably requested in connection with such increase; and (Gvi) if applicable, the LC Administrator shall have delivered to the respective beneficiaries of outstanding Several Letters of Credit amendments (or, in the case of any Several Letter of Credit issued individually by the Lenders, a replacement Several Letter of Credit in 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 any increase in the Total Commitment, the Administrative Agent shall promptly advise the Borrower and each Incremental Revolving Credit Increase (Lender of the terms effective date of which 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 set forth deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder. It is understood that any increase in a Lender joinder agreement):the amount of the Commitments pursuant to this §2.1.2 shall not constitute an amendment of this Reimbursement and Pledge Agreement.
Appears in 1 contract
Sources: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Increase in Commitments. (a) At any time following after the Closing DateEffective Date and no more than two times during any calendar year, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Banks), request at any time or from time to time that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)be increased; provided that (1i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for of each Incremental Loan Commitment (and the Incremental Loans made thereunder) such increase pursuant to this Section shall not be less than a minimum principal $25,000,000 and the aggregate amount of $10,000,000 or, if less, the remaining amount permitted all such increases pursuant to the foregoing clause this Section shall not exceed $250,000,000, (1). Each ii) each such notice shall specify the date (each, an “Increased Amount Date”) on which request of the Borrower proposes that any Incremental Loan Commitment shall be effectivedeemed to be an offer to each Bank to increase its Commitment by its Applicable Percentage of the proposed increased amount, which shall be a date not less than ten and (10iii) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declineeach Bank, in its sole discretion, may either (A) agree to provide such Incremental Loan increase its Commitment by all or a portion of the offered amount or (B) decline to increase its Commitment. Any Incremental Loan 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 Banks shall have agreed to increase their Commitments by an aggregate amount less than the increase in the Total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Augmenting Bank"), which may include any Bank, to extend Commitments or increase its existing Commitment in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Bank, if not already a Bank hereunder, shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld or delayed). Increases to and new Commitments created pursuant to this paragraph (a) shall become effective upon the execution and delivery by the Borrower, the Agent and any Banks (including any Augmenting Banks) agreeing to increase their existing Commitments or extend new Commitments, as the case may be, of an agreement providing for such increased or additional Commitments (a "Commitment Increase Agreement"), subject to the satisfaction of any conditions set forth in such agreement. Notwithstanding the foregoing, no increase in the Total Commitments (or in the Commitment of any Bank) shall become effective under this paragraph unless, on the date of such Increased Amount Date; provided that:
increase, the conditions set forth in Sections 3.02 (Ac) no Default or Event of Default and (d) shall exist be satisfied (as though a Borrowing were being made on such Increased Amount Date before or after giving effect to (1date) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders Agent shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form certificate to that effect dated such date and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each executed by an authorized officer of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may on one or more occasions, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
total US Tranche Commitments or European Tranche Commitments be increased by an amount not less than $25,000,000 (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more with simultaneous increases in the Revolving US Tranche Commitments (any such and the European Tranche Commitments being deemed to be a single increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan of the increases in the US Tranche Commitments and the European Tranche Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 250,000,000. Such notice shall set forth the amount of the requested increase in the total aggregate amount for each Incremental Loan Commitment (US Tranche Commitments or European Tranche Commitments, as the case may be, and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 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 on which such notice is delivered of the Company's notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect 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 declinedeemed to have declined being a "Non-Increasing Lender"). In the event that, in its sole discretionon the 10th Business Day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the Borrower a Pro Forma Compliance Certificate demonstratingpreceding 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 being called an "Augmenting Lender"), which may include any Lender, to extend 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 form and substance reasonably satisfactory an aggregate amount equal to the Administrative Agentunsubscribed amount; provided that each Augmenting Lender, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)if not already a Lender hereunder, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Issuing Bank and the Borrower, but will Swingline Lender (which approval shall not in any event have a shorter weighted average life to maturity than be unreasonably withheld) and the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan Borrowers and except each Augmenting Lender shall execute all such documentation as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and shall reasonably specify to evidence the Borrower;
(G) Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the total US Tranche Commitments or European Tranche Commitments, as the case of each Incremental Revolving Credit Increase (may be, may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Increase in Commitments. (a) At any time following During the Closing DateRevolving Credit Period, the Borrower may on one or more occasions, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to request each of the establishment of:
Lenders), executed by the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Augmenting Lender”), which may include any Lender, cause Commitments to be made available by the Augmenting Lenders (or cause the Commitments of the Augmenting Lenders to be increased, as the case may be) in an amount for each Augmenting Lender set forth in such notice; provided that (i) one or more incremental term loan commitments (any the aggregate amount of all such incremental term loan commitmentincreases pursuant to this Section shall not exceed $500,000,000, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent and each Issuing Bank (which approval shall not be unreasonably withheld) and (iii) each Augmenting Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the Agent a duly executed accession agreement in a form satisfactory to the Agent and the Borrower. Any such notice shall set forth the amount of the requested increase in the Revolving total Commitments (which shall be the lesser of (x) a minimum aggregate amount of $20,000,0000 or any larger multiple of $5,000,000 or (y) the remaining aggregate allowance for such increases) and the date on which such increase is requested to become effective. Increases and new Commitments created pursuant to this Section 2.10(a) shall become effective on the date specified in the notice delivered by the Borrower pursuant to the first sentence of this Section 2.10(a). Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment of any Lender) shall become effective under this Section 2.10(a) unless, (i) on the date of such increase, an the conditions set forth in Sections 3.02(b) and 3.02(d) (without giving effect to the parenthetical in Section 3.02(d)) shall be satisfied (as though a Borrowing were being made on such date) and the Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the Borrower, and (ii) the Agent shall have received (to the extent requested by the Agent reasonably in advance of such date) documents consistent with those delivered under Sections 3.01(c) and 3.01(d) as to the corporate power and authority of the Borrower to borrow hereunder and as to the enforceability of this Agreement after giving effect to such increase.
(b) At the time that any increase in the total Commitments pursuant to Section 2.10(a) (a “Incremental Revolving Commitment” andCommitment Increase”) becomes effective, together with the Incremental Term Loan Commitmentsif any Committed Loans are outstanding, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement Borrower shall prepay in accordance with Section 2.14 the aggregate principal amount of all Committed Loans outstanding (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans Initial Loans”); provided that (1i) nothing in this Section shall prevent the total aggregate principal amount for all such Incremental Loan Commitments shall not (as Borrower from funding the prepayment of any date Initial Loans with concurrent Borrowings hereunder in accordance with the provisions of incurrence thereof) exceed $250,000,000 this Agreement, giving effect to the Commitment Increase, and (2ii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) no such prepayment shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant required to the foregoing clause (1). Each such notice shall specify the date (eachextent that, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan the Commitment and (2) Increase, each Lender has the making of any Incremental Loans pursuant thereto;same Applicable Percentage as immediately prior to such Commitment Increase.
(Bc) At the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingtime that any Commitment Increase becomes effective, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) if any Letters of Credit or 7.1(b)Swingline Loans issued or made, as applicable, both before hereunder remain outstanding, each Lender's participation in such Letters of Credit and Swingline Loans will be adjusted in accordance with such Lender's Applicable Percentage, after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan such Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Increase.
Appears in 1 contract
Sources: Credit Agreement (Aetna Inc /Pa/)
Increase in Commitments. (a) At any time following Subsequent to the Closing Effective Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (so long as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist have occurred and be continuing, the Borrower may, on one or more occasions, upon notice to the Administrative Agent (which shall promptly provide a copy of such Increased Amount Date before or after giving effect notice to the Banks), propose to increase the Commitments by an amount not to exceed $100,000,000 in the aggregate of all such increases pursuant to this Section 2.18 (1that is, the Commitments shall not exceed $200,000,000) any Incremental Loan Commitment and (2) the making amount of any Incremental Loans pursuant thereto;
(B) such increase, the "Increased Commitments"). No such increase in the Commitments shall be less than $10,000,000. Following the delivery of such notice, the Administrative Agent and the Lenders Borrower shall have received cooperate with each other to obtain commitments from one or more banks or other financial institutions (which may be, but need not be, one or more of the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basisexisting Banks) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(Fi) in the case of each Incremental Term Loan any such bank or other financial institution that is an existing Bank, increase its Commitment and (ii) in the terms case of which shall be set forth in a Lender joinder agreementany other such bank or other financial institution (an "Additional Bank"), such Incremental Term Loan become a party to this Agreement. Each existing Bank shall confirm in writing as to whether or not it will mature and amortize in agree to increase its Commitment within fifteen (15) Business Days of receipt of a manner reasonably acceptable to written request therefor from the Administrative Agent, . No bank or other financial institution may become an Additional Bank unless it would be permitted to be an Assignee pursuant to Section 9.6(c). The sum of the Incremental Lenders making such Incremental Term Loan and increases in the Borrower, but will Commitments of the existing Banks pursuant to this subsection (a) plus the Commitments of the Additional Banks shall not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan aggregate exceed $100,000,000. No existing Bank shall be reasonably required to increase its Commitment in connection with an increase in the amount of the Commitments pursuant to this Section 2.18.
(b) Any increase in the amount of the Commitments pursuant to this Section 2.18 shall become effective upon the receipt by the Administrative Agent of an agreement in the form and substance satisfactory to the Administrative Agent signed by the Borrower, CESRRI, by each Additional Bank and by each existing Bank, setting forth the new Commitments of the Additional Banks and the Borrower;
(G) in existing Banks and setting forth the case agreement of each Incremental Revolving Credit Increase (Additional Bank to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to the Increased Commitments (including authorization of payment to the Banks and the Administrative Agent of any costs or fees which may be incurred under Section 2.13 hereof in connection with the reallocation of outstanding Loans) and supporting legal opinions as the Administrative Agent may reasonably request. To the extent necessary, the existing Notes shall be set forth replaced and new Notes shall be executed and delivered. Upon receipt by the Administrative Agent of a fully executed agreement in a Lender joinder agreement):accordance with this Section 2.18(b), Administrative Agent shall prepare replacements of Schedules I and II reflecting the new Commitment, if applicable, for each existing Bank and Additional Bank, which replacements of Schedules I and II shall be delivered by Administrative Agent to each existing Bank and Additional Bank and shall thereafter constitute Schedules I and II to this Agreement for all purposes.
Appears in 1 contract
Sources: Credit Agreement (Smith Charles E Residential Realty Lp)
Increase in Commitments. (a) At any time following the Closing DateThe Parent Borrower may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (aggregate Revolving Commitments be increased by an amount not less than $10,000,000 for any such incremental term loan commitment, an “Incremental Term Loan Commitment”) increase; provided that after giving effect to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase the sum of the total Revolving Commitments shall not exceed $100,000,000. Such notice shall set forth the amount of the requested increase in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 30 days or more than 60 days after the date of such notice), and shall offer each Lender the opportunity to increase its Revolving Commitment by such Lender’s Applicable Percentage of the proposed increased amount. Each Lender shall, by notice to the Parent Borrower and the Administrative Agent given not more than 10 Business Days after the date on which such notice is delivered of the Parent Borrower’s notice, either agree to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan increase its applicable Revolving Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect or declineLender that does not deliver such a notice within such period of 10 Business Days shall be deemed to have declined to increase its Commitment). In the event that, in its sole discretionon the 10th Business Day after the Parent Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory declined or agreed pursuant to the Administrative Agentpreceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Parent Borrower, that the Parent Borrower is in compliance with the may arrange for one or more banks or other financial covenants set forth in Section 7.10 based on the institutions (any such bank or other financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(binstitution being called an “Augmenting Lender”), as applicablewhich may include any Lender, both before and after giving effect (on to provide Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a pro forma basis) to (x) any Incremental Loan CommitmentLender hereunder, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower;
(G) 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 case of each Incremental aggregate Revolving Credit Increase (Commitments may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Parent Borrower if the Parent Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Mac-Gray Corp)
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect in substantially the form of Exhibit “D”, request that the Tranche A Commitments and the Tranche B Commitments be increased by an aggregate amount not to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”)exceed $400,000,000; provided that the Borrower may not make more than 3 such requests and each request shall be to increase both Classes of Commitments by an equal amount. Such notice shall set forth the amount of the requested aggregate increase (1) the total aggregate principal amount for all such Incremental Loan Commitments which shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than in a minimum principal aggregate amount of $10,000,000 or100,000,000 and in minimum aggregate increments of $5,000,000 above that amount, if lessin each case, divided equally between the remaining amount permitted pursuant to the foregoing clause (1two Classes). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after and the date on which such increase is requested to become effective (which shall be not less than 10 days nor more than 60 days after the date of such notice is delivered and which, in any event, must be on or prior to Administrative Agentthe then applicable Commitment Termination Dates). The Borrower may invite any Lender, any Affiliate Upon the receipt of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to such request by the Administrative Agent, the Administrative Agent shall give notice promptly to provide an Incremental Loan each Bank substantially in the form of Exhibit “E”, which notice will offer each such Bank the opportunity to increase its Commitment (any of each Class by its applicable Pro Rata Share of the proposed increased amount for such PersonClass. Each such Bank shall, an by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit “Incremental LenderF”). Any proposed Incremental Lender offered or approached , given not more than 10 days after the date of the Administrative Agent’s notice, either agree to provide increase its Commitments by all or a portion (provided such portion is divided equally between the Classes) of the offered amount (each Bank so agreeing being an “Increasing Bank”) or decline to increase such Commitments (and any Incremental Loan Commitment Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase such Commitments) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). For greater certainty, a Bank may elect only agree to increase both of its Commitments or declinedecline to increase both of its Commitments. In the event that, in its sole discretionon the 10th day after the Administrative Agent shall have delivered a notice pursuant to the third sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Bank”), which may include any Bank, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Bank shall extend or increase Commitments of each Class by an equal amount, each Augmenting Bank that is not an existing Bank shall be subject to the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and the Borrower and each Augmenting Bank that is not an existing Bank shall execute such Incremental Loan Commitmentdocumentation as the Administrative Agent shall reasonably specify to evidence such Augmenting Bank’s Commitment and/or its status as a Bank hereunder. Any Incremental Loan Commitment such increase 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 Banks. The Borrower and the Administrative Agent shall execute an amendment to Exhibit “H” evidencing the revised Commitments.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.9, the Accommodations Outstanding of each Class (if any) are held by the Banks in accordance with their new applicable Pro Rata Shares. This may be accomplished at the reasonable discretion of the Administrative Agent, following consultation with the Borrower, (i) by requiring the Accommodations Outstanding of a Class to be prepaid with the proceeds of a new Accommodation, (ii) by causing Non-Increasing Banks to assign portions of their Accommodations Outstanding of a Class to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all principal and interest and fees accrued as to such Accommodations up to the effective date of such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this clause (b) shall be subject to Section 6.3, but shall otherwise be without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Commitments shall become effective as under this Section 2.9 unless (i) on the date of such Increased Amount Date; provided that:
increase, (A) no Default shall have occurred and be continuing or Event of Default shall exist on will result from the increase in such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment Commitments as set forth herein and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained made by the Borrower in Section 6 8 shall be true and correct on and as of the date of the increase in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date Commitments with the same force and effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of unless stated to relate solely to an earlier date, in which representation case such representations and warranty warranties shall remain be true and correct in all respects as of such earlier date);
, (Dii) the proceeds of any Incremental Loans Borrower Debt Ratings assigned by S&P, Moody’s and DBRS to the Index Debt shall be used for general corporate purposes equal to or better than their respective ratings of such Borrower’s Index Debt in effect as of the Borrower and its Subsidiaries 2024 Effective Date (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and after giving effect to the Incremental Loans made thereunder) shall constitute Obligations incurrence of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in Commitment increase or Accommodations, as the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementmay be), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to (iii) the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent shall have received a compliance certificate certifying and the Borrower, but will not showing (in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then reasonable detail and with appropriate calculations and computations in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be respects reasonably satisfactory to the Administrative Agent Agent) that (A) each of the conditions set forth in the preceding clauses (i) and (ii) have been satisfied and (B) on a historical pro forma basis (after giving effect to the incurrence of the applicable Commitment increase or Accommodations, as the case may be) as of the last day of the most recently completed Six Month Period with respect to which, pursuant to Section 9.1, financial statements have been, or are required to have been, delivered by the Borrower;
, the Borrower would be in compliance with Section 9.10 as of the last day of such Six Month Period, (Giv) in the case event that a proposed increase in the Commitments pursuant to this Section 2.9 would result in the aggregate amount of each Incremental Revolving Credit Increase the increases in Commitments pursuant to this Section 2.9 exceeding $375,000,000, the Administrative Agent shall have received a written confirmation from HMC that, upon and after the increase in the applicable Commitments, all Accommodations Outstanding and all interest hereunder will constitute “Debt” as such term is used in the HMC Support Agreement together with the certifications provided by the Borrower pursuant to Section 7.3(d) and (v) the terms Administrative Agent shall have received all fees to be mutually agreed between the Borrower and the Administrative Agent.
(d) Notwithstanding anything to the contrary in this Section 2.9, if, at the time that a request is made pursuant to this Section 2.9(a) or prior to the time such request is given effect, a Class of which Commitments has been terminated or a Commitment Termination Date has occurred with respect to a Class, such request shall be set forth in a Lender joinder agreement):apply with respect to the remaining Class of Commitments and this Section 2.9 shall apply mutatis mutandis to such request and any such increase.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateProvided no Default exists, the Borrower may by written upon notice to the Administrative Agent elect to (which shall promptly notify the Lenders), the OP Borrower may no more than three times during the Initial Term, request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases increase in the Revolving Aggregate Commitments (by an amount not less than $10,000,000 for any such increaseindividual request, an “Incremental Revolving Commitment” and, together with and not exceeding $100,000,000 in the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan requests, provided that, in any event, the Aggregate Commitments shall not exceed $300,000,000 at any time. At the time of sending such notice, the OP Borrower (as in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the OP Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the OP Borrower may also invite additional Eligible Assignees to become Lenders upon execution of a supplemental signature page to this Agreement substantially in the form of Exhibit L. Each Borrower shall execute and deliver such amendments to the Loan Documents and other documents and certificates, including a new Note in favor of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (additional Eligible Assignee, and the Incremental Loans made thereunder) Borrowers shall pay such additional upfront fees, arrangement fees and other fees, as may be mutually agreed between the Borrowers, the Administrative Agent and such additional Eligible Assignees (it being understood that any such fees shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant required to the foregoing clause (1be ratable). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:.
(Ab) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) If the making of any Incremental Loans pursuant thereto;
(B) Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the OP Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the OP Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the OP Borrower shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory deliver to the Administrative AgentAgent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, that and (ii) in the Borrower is in compliance with case of the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)Borrowers, as applicablecertifying that, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch increase, (yA) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be Article V and the other Loan Documents are true and correct in all material respectson and as of the Extension Effective Date, except to the extent any that such representation representations and warranty is qualified by materiality or reference warranties specifically refer to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, in which representation and warranty shall remain case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b);, respectively, of Section 6.01, and (B) no Default exists. The Borrowers 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.
(Dc) the proceeds of This Section shall supersede any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) provisions in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable Sections 2.13 or 10.01 to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):contrary.
Appears in 1 contract
Increase in Commitments. (ai) At any time following prior to the Closing Maturity Date, the Borrower Borrowers may effectuate up to two separate increases in the aggregate Commitments (each such increase being a “Commitment Increase”), by written notice to the Administrative Agent elect to request the establishment of:
(i) designating either one or more incremental term loan commitments of the existing Lenders (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as each of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declinewhich, in its sole discretion, may determine whether and to provide what degree to participate in such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
Increase) or one or more other banks or other financial institutions (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect reasonably acceptable to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Applicable Administrative Agent and the Applicable Issuing Lender) that at the time agree, in the case of any such bank or financial institution that is an existing Lender to increase its US Commitment or Canadian Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other such bank or financial institution (an “Additional Lender”), to become a party to this Agreement; provided, however, that (A) the aggregate Canadian Commitments shall not at any time exceed $25,000,000 at any time without the consent of the US Administrative Agent and shall not exceed $75,000,000 at any time without the consent of the US Administrative Agent and the US Majority Lenders, (B) other than as set forth in clause (C) below, each Commitment Increase shall be of at least $25,000,000, (C) each Commitment Increase which only increases the aggregate Canadian Commitments shall be of at least $5,000,000, (D) the aggregate amount of all Commitment Increases shall not exceed $75,000,000, and (E) all Commitments and Advances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Commitments and Advances. The sum of the increases in the Commitments of the Increasing Lenders plus the Commitments of the Additional Lenders upon giving effect to a Commitment Increase shall have received from not, in the aggregate, exceed the amount of such Commitment Increase. The Borrowers shall provide prompt notice of any proposed Commitment Increase pursuant to this clause (f) to the Administrative Agents and the applicable Class of Lenders. This Section 2.1(f) shall not be construed to create any obligation on any of the Administrative Agents or any of the Lenders to advance or to commit to advance any credit to any Borrower a Pro Forma Compliance Certificate demonstrating, or to arrange for any other Person to advance or to commit to advance any credit to any Borrower.
(ii) A Commitment Increase shall become effective upon (A) the receipt by each Administrative Agent of (1) an agreement in form and substance reasonably satisfactory to the Applicable Administrative AgentAgent signed by the Applicable Borrower, that each Increasing Lender and each Additional Lender, setting forth the Borrower is in compliance Commitments, if any, of each such Lender and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (2) such evidence of appropriate authorization on the part of the Borrowers with respect to such Commitment Increase as the financial covenants Applicable Administrative Agent may reasonably request, (B) the funding by each Increasing Lender and Additional Lender of the Advances to be made by each such Lender to effect the prepayment requirement set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b2.7(c)(iv), as applicableand (C) receipt by the US Administrative Agent of a certificate of an authorized officer of the US Borrower stating that, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch Commitment Increase, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) no Default has occurred and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the is continuing, and that all representations and warranties contained made by the Borrowers in Section 6 shall be this Agreement are true and correct in all material respectsrespects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), except to the extent any unless such representation and or warranty is qualified by materiality or reference relates to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, date which representation and warranty shall remain remains true and correct as of such earlier date);.
(Diii) Notwithstanding any provision contained herein to the proceeds contrary, from and after the date of any Incremental Loans Commitment Increase, all calculations and payments of interest on the Advances shall be used for general corporate purposes take into account the actual US Commitment and Canadian Commitment of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (Lender and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case principal amount outstanding of each Incremental Term Loan (Advance made by such Lender during the terms relevant period of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):time.
Appears in 1 contract
Sources: Credit Agreement (Complete Production Services, Inc.)
Increase in Commitments. (a) At any time following prior to the Closing Business Day immediately preceding the Revolving Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) effectuate one or more increases in the aggregate Revolving Commitments (any each such increase, an increase being a “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that , by designating either one or more of the existing Lenders (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as each of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or declinewhich, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its Revolving Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided, however, that (i) each such Commitment Increase shall be equal to at least $25,000,000, (ii) all Revolving Commitments and Advances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Revolving Commitments and Revolving Advances, as applicable, except as to upfront fees which may be as agreed to between the Borrower and such Increasing Lender or Additional Lender, as the case may be, (iii) the aggregate of all such Commitment Increases shall not exceed $300,000,000, and (iv) such Commitment Increase shall not effect an increase in the aggregate Revolving Commitments if the Revolving Maturity Date has occurred. The Borrower shall provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as prompt notice of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect proposed Commitment Increase pursuant to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) this Section 2.15 to the Administrative Agent and the Lenders. This Section 2.15 shall not be construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower or to arrange for any other Person to advance or to commit to advance any credit to the Borrower.
(b) The Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have received from been satisfied: (i) the Borrower a Pro Forma Compliance Certificate demonstrating, receipt by the Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the Administrative AgentAgent signed by the Borrower, that each Increasing Lender and/or each Additional Lender, setting forth the Revolving Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender and (B) such evidence of appropriate authorization on the part of the Borrower is in compliance with respect to such Commitment Increase and such legal opinions as the financial covenants Administrative Agent may reasonably request, (ii) the funding by each Increasing Lender and Additional Lender of the Revolving Advances to be made by each such Lender to effect the prepayment requirement set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b2.5(c)(ii), as applicable, (iii) receipt by the Administrative Agent of a certificate of an authorized officer of the Borrower certifying (A) both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentsuch Commitment Increase, no Default has occurred and is continuing, (yB) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the all representations and warranties contained made by the Borrower in Section 6 shall be this Agreement are true and correct in all material respectsrespects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), except to the extent any unless such representation and or warranty is qualified by materiality or reference relates to Material Adverse Effect, in an earlier date which case, such representation and warranty shall be remains true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct material respects as of such earlier datedate (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof);
, and (DC) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed pro forma compliance with the other Extensions covenants in Sections 6.17, 6.18 and 6.19, after giving effect to such Commitment Increase, and (iv) receipt by the Increasing Lender or Additional Lender, as applicable, of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a all such fees as agreed to between such Increasing Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan /or Additional Lender and the Borrower.
(c) Notwithstanding any provision contained herein to the contrary, but will not in any event have a shorter weighted average life to maturity than from and after the remaining weighted average life to maturity date of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided abovesuch Commitment Increase, all other terms calculations and conditions applicable to any Incremental Term Loan payments of interest on the Revolving Advances shall be reasonably satisfactory to take into account the Administrative Agent actual Revolving Commitment of each Lender and the Borrower;principal amount outstanding of each Revolving Advance made by such Lender during the relevant period of time.
(Gd) On such Increase Date if such Commitment Increase involves an increase in the case aggregate Revolving Commitments, each Lender’s share of each Incremental the Letter of Credit Exposure on such date shall automatically be deemed to equal such Lender’s Revolving Pro Rata Share of such Letter of Credit Obligations (such Revolving Pro Rata Share for such Lender to be determined as of the Increase (Date in accordance with its Revolving Commitment on such date as a percentage of the terms of which shall be set forth in a Lender joinder agreement):aggregate Revolving Commitments on such date) without further action by any party.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent, request that the Commitments be increased by an amount not to exceed the Incremental Amount at such time. Upon the receipt of such request by the Agent, the Agent elect shall deliver a copy thereof to request each Lender. Such notice shall set forth the establishment of:
amount of the requested increase in the Commitments (which shall be (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as minimum increments of any date of incurrence thereof) exceed $250,000,000 1,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, or (ii) equal to the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify Incremental Amount) and the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, such increase is requested to become effective (which shall be a date not less than ten (10) 10 Business Days nor more than 90 Business Days after the date on which of such notice is delivered to Administrative Agent. The Borrower may invite and which, in any Lenderevent, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory must be on or prior to the Administrative Maturity Date), 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 Borrower and the Agent given not more than 10 Business Days after the date of the Agent’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment 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 being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th Business Day after the Agent shall have delivered a notice pursuant to the second 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 Commitments requested by the Borrower, the Borrower may elect arrange for one or declinemore banks or other entities (any such bank or other entity being called an “Augmenting Lender”), in its sole discretionwhich may include any Lender, to provide extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent and the Issuing Lender (which approvals shall not be unreasonably withheld) and the Borrower and each Augmenting Lender shall execute all such Incremental Loan Commitmentdocumentation as the Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:increase in the Commitments may be made in an amount which 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.
(Ab) no Default or Event Each of Default shall exist on such Increased Amount Date before or the parties hereto hereby agrees that the Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Commitments pursuant to this Section 2.19, the outstanding Loans (1if any) are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Agent, following consultation with the Borrower, (i) by requiring the outstanding Loans to be prepaid with the proceeds of a new Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Loans to Increasing Lenders and Augmenting Lenders, or (iii) by any Incremental Loan Commitment combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.14, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Commitments or addition of a new Lender shall become effective under this Section 2.19 unless, (i) no Default shall have occurred or be continuing, (ii) on the date of such increase, the conditions set forth in paragraphs (a) and (2b) the making of any Incremental Loans pursuant thereto;
(B) Section 4.03 shall be satisfied and the Administrative Agent and the Lenders shall have received from a certificate to that effect dated such date and executed by a Financial Officer of the Borrower a Pro Forma Compliance Certificate demonstratingBorrower, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (ziii) any Permitted Acquisition consummated in connection therewith;
(C) each of upon reasonable request by the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan Agent shall have received legal opinions and board resolutions consistent with those delivered on the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Effective Date then in effect for any prior Incremental Term Loan or any Revolving Loan under Sections 4.01(e) and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):4.01(k)(i).
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe Company may, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (amount not less than $25,000,000 for any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such increase the sum of the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) 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 aggregate amount for each Incremental Loan Commitment (Commitments and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the Administrative AgentAgent given not more than 10 days after the date of the Company’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect or declineLender 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, in its sole discretionon the 10th day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory agreed pursuant to the Administrative Agentpreceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, that the Borrower is Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(athis clause (a) or 7.1(bbeing called an “Augmenting Lender”), as applicablewhich may include any Lender, both before and after giving effect (on to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a pro forma basis) to (x) any Incremental Loan CommitmentLender hereunder, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except subject to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as approval of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent (which approval shall not be unreasonably withheld) and the Borrower;
(G) Company and 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 hereunder. Any increase in the case of each Incremental Revolving Credit Increase (total Commitments may be made in an amount which is less than the terms of which shall be set forth in a Lender joinder agreement):increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Hubbell Inc)
Increase in Commitments. (a) At The Borrower may, at any time following after the Closing Effective Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental increases to the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Increase”) and/or (ii) one or more increases to the aggregate amount of any Class of Term Loans then outstanding (each such increase, a “Term Loan Increase”) and/or (iii) one or more new tranches of Term Loans (each such new tranche, an “Incremental Term Loan Facility”, and the term loan commitments (any such incremental term loan commitmentloans made pursuant thereto, each an “Incremental Term Loan”, and the commitment made pursuant thereto, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, and together with the Incremental any Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (Increase and any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the each a “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount DateIncrease”) on which by delivering an increase request substantially in the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten form attached hereto as Exhibit J (10) Business Days after the date on which or in such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory form acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such Commitment Increase identifying one or more banks or financial or other lending institutions, to provide an Incremental Loan Commitment including any then-existing Lender (any such Personeach, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan one or more Commitment shall become effective as Increase and the amount of such Increased Amount DateCommitment Increase; provided provided, however, that:
(Aa) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to all such Commitment Increases, the aggregate amount of all Facilities shall not exceed $1,250,000,000 and any such Commitment Increase shall be in an amount not less than $10,000,000 (1) any Incremental Loan Commitment and (2) or such lesser amount then agreed to by the making of any Incremental Loans pursuant theretoAdministrative Agent);
(Bb) in the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstratingevent of any Revolving Credit Increase, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is L/C Issuer and the Swingline Lender shall have approved the identity of any such Incremental Lender (to the extent such approval would be required in compliance connection with the financial covenants set forth in an assignment to such Incremental Lender under Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a13.2(b)(iii) or 7.1(bhereof), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed such approvals not to be fully funded) and (z) any Permitted Acquisition consummated in connection therewithunreasonably withheld, conditioned or delayed;
(Cc) no Default shall have occurred and be continuing at the time of the request or the effective date of the Commitment Increase; and
(d) each of the representations and warranties contained set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Commitment Increase (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects, except to the extent any such representation and warranty is respects (where not already qualified by materiality or reference to Material Adverse Effectmateriality, in which case, such representation and warranty shall be true and correct otherwise in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct ) as of such earlier date);
(D) . The effective date of the proceeds of any Incremental Loans Commitment Increase shall be used for general corporate purposes of agreed upon by the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (Borrower, the Administrative Agent and the Incremental Loans made thereunderLender. Upon the effectiveness thereof, Schedule 2.2(a) and 2.2(b) shall constitute Obligations be deemed amended to reflect the Commitment Increase. Any Incremental Lender providing a Revolving Credit Increase shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Revolving Lender shall have outstanding its Revolver Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. The Borrower, the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, pro rata payment and funding indemnity requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The Borrower agrees to pay the expenses of the Borrower Administrative Agent (including reasonable and documented attorney’s fees) relating to any Commitment Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to provide any Commitment Increase and no Lender’s Commitment or Loan of any Class shall be secured increased without its consent thereto, and guaranteed each Lender may at its option, unconditionally and without cause, decline to provide any Commitment Increase. Any such declining Lender shall have no consent right with the other Extensions of Credit on a pari passu basis;
(F) in the case of each respect to such Commitment Increase, and any Incremental Term Loan (the terms of which Lender shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative AgentAgent (to the extent the consent of the Administrative Agent would be required in connection with an assignment to such Incremental Lender under Section 13.2(b)(iii) hereof) with such consent not to be unreasonably withheld or delayed. Any Commitment Increase under this Agreement shall be implemented pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the Incremental Lenders making such Incremental Term other Loan and Documents, executed by the Borrower, but will not in any event have a shorter weighted average life to maturity than each Incremental Lender and the remaining weighted average life to maturity Administrative Agent. The Incremental Amendment may, without the consent of any prior other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect the provisions of this Section 2.15, notwithstanding anything to the contrary otherwise contained in this Agreement (including Section 13.3). All Incremental Term Loan Loans (i) shall rank pari passu in right of payment with each other then-existing Class of Loans and shall not be secured by any additional collateral or a maturity date guaranteed by any additional Guarantors that does not also secure and guarantee each other then-existing Class of Loans, (ii) shall not mature earlier than the latest Termination the Term Loan Maturity Date then in effect for any then-existing Term Loans (but may have amortization prior to such date), and (iii) shall be treated substantially the same as (and in any event no more favorably than (unless such favorable terms are added to the Loan Documents for the benefit of all then-existing Term Loans)) any then-existing Term Loans and each other tranche of Incremental Term Loan or any Revolving Loan and except as Loans; provided above, all other that (I) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Term Loan shall Maturity Date for each then-existing Term Facility may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan Maturity Date for such existing Term Facility and (II) each tranche of Incremental Term Loans may be reasonably satisfactory to priced differently than the Administrative Agent Tranche 1 Term Loans, the Tranche 2 Term Loan, and the Borrower;
(G) in the case any other tranche of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Term Loans.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe U.S. Borrower may, the Borrower may by written notice to the Administrative Agents from time to time after the Closing Date, request that the Total Commitment be increased by an amount not to exceed the Incremental Commitment Amount at such time by delivering a request to the Administrative Agent, who shall deliver a copy thereof to each Lender. Such notice shall set forth (a) the amount of the requested increase in the Total Commitment (which shall be in minimum increments of U.S.$1,000,000 and a minimum amount of U.S.$5,000,000 or equal to the remaining Incremental Commitment Amount), (b) the amount of the requested increase in the Total U.S. Commitment, the Total Canadian Commitment or both and (c) the date on which such increase is requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Lender the opportunity to increase its U.S. Commitment or its Canadian Commitment, as applicable and as the case may be, by its U.S. Pro Rata Percentage or its Canadian Pro Rata Percentage, as applicable and as the case may be, of the proposed increase amount. Each Lender shall, by notice to the Borrowers and the Administrative Agents 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 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) (each Lender so declining or being deemed to have declined being a "Non-Increasing Lender"). In the event that, on the 10th day after the Administrative Agent elect shall have delivered a notice pursuant to request the establishment of:
(i) second sentence of this paragraph, the Lenders shall have declined any increase or agreed pursuant to the preceding sentence to increase their Commitment by an aggregate amount less than the increase in the Total Commitment requested by the U.S. Borrower, the U.S. Borrower may arrange for one or more incremental term loan commitments banks or other entities (any such incremental term loan commitment, bank or other entity referred to in this clause (a) being called an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” "Augmenting Lender" and, together with the Incremental Term Loan CommitmentsIncreasing Lenders, the “"Incremental Loan Commitments”) Lenders"), to make additional revolving credit loans under this Agreement (any such increase, extend the Commitment in an “Incremental Revolving Credit Increase” and, together with aggregate amount equal to the Incremental Term Loans, the “Incremental Loans ”)unsubscribed amount; provided that (1) each Augmenting Lender shall be subject to the total aggregate principal amount for all such Incremental Loan Commitments shall not (as approval of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (Administrative Agents and the Incremental Loans made thereunder) Issuing Banks (which approvals shall not be unreasonably withheld or delayed). Any increase in the Total Commitment may be made in an amount which is less than a minimum principal amount of $10,000,000 orthe increase requested by the U.S. Borrower if the U.S. Borrower is unable to arrange for, if lessor chooses not to arrange for, the remaining amount permitted pursuant to the foregoing clause Augmenting Lenders.
(1). Each such notice b) The Borrowers and each Incremental Lender shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory execute and deliver to the Administrative Agent, to provide Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment (any of such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached its status as a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to provide all or a portion the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:evidenced thereby.
(Ac) no Default or Event Each of Default shall exist on such Increased Amount Date before or the parties hereto hereby agrees that the Administrative Agents may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Commitment pursuant to this Section 2.23, the outstanding U.S. Loans (1if any) are held by the U.S. Lenders in accordance with their new U.S. Pro Rata Percentages and the outstanding Canadian Loans (if any) are held by the Canadian Lenders in accordance with their new Canadian Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agents (i) by requiring the outstanding Loans to be prepaid with the proceeds of a new Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Loans to Incremental Lenders, (iii) by permitting the Borrowings outstanding at the time of any Incremental Loan increase in the Total Commitment pursuant to this Section 2.23 to remain outstanding until the last days of the respective Interest Periods therefor, even though the Lenders would hold such Borrowings other than in accordance with their new Pro Rata Percentages, or (iv) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (c) shall be subject to indemnification by the Borrowers pursuant to Section 2.15, but otherwise without premium or penalty.
(d) Notwithstanding the foregoing, no increase in the Total Commitment (or in the Commitment of any Lender) or addition of a new Lender shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b), (c) and (2d) of Section 4.01 shall be satisfied and the making Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of any Incremental Loans pursuant thereto;
the U.S. Borrower and (Bii) the Administrative Agent and the Lenders shall have received from (with sufficient copies for each of the Borrower a Pro Forma Compliance Certificate demonstratingLenders) legal opinions, in form board resolutions and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance an officer's certificate consistent with the financial covenants set forth in Section 7.10 based those delivered on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect Closing Date under clauses (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully fundeda)(i) and (zc)(ii)(B) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):4.02.
Appears in 1 contract
Increase in Commitments. (a) At any time following the Closing DateThe U.S. Borrower may, the Borrower may by written notice to the Administrative Agent elect Agents from time to time after the Closing Date, request that the establishment of:
Total Commitment be increased by an amount not to exceed the Incremental Commitment Amount at such time by delivering a request to the Administrative Agent, who shall deliver a copy thereof to each Lender. Such notice shall set forth (ia) the amount of the requested increase in the Total Commitment (which shall be in minimum increments of U.S.$1,000,000 and a minimum amount of U.S.$25,000,000 or equal to the remaining Incremental Commitment Amount), (b) the amount of the requested increase in the Total U.S. Commitment, the Total Canadian Commitment or both and (c) the date on which such increase is requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer one or more incremental term loan commitments Lenders the opportunity to increase their U.S. Commitment or its Canadian Commitment, as applicable. Each Lender so agreeing to increase its Commitment by all or a portion of the offered amount (each such Lender being an "Increasing Lender") shall give notice to the Borrowers and the Administrative Agents not more than 10 days after the date of the Administrative Agent's notice. Any Lender that declines to increase its Commitment or does not deliver such a notice within such period of 10 days, in which case such Lender shall be deemed to have declined to increase its Commitment, shall be a "Non-Increasing Lender". The decision to agree to increase its Commitment hereunder shall be at the sole discretion of each Lender. In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Lenders shall have declined any increase or agreed pursuant to the preceding sentence to increase their Commitment by an aggregate amount less than the increase in the Total Commitment requested by the U.S. Borrower, the U.S. Borrower may arrange for one or more banks or other entities (any such incremental term loan commitment, bank or other entity referred to in this clause (a) being called an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” "Augmenting Lender" and, together with the Incremental Term Loan CommitmentsIncreasing Lenders, the “"Incremental Loan Commitments”) Lenders"), to make additional revolving credit loans under this Agreement (any such increase, extend the Commitment in an “Incremental Revolving Credit Increase” and, together with aggregate amount equal to the Incremental Term Loans, the “Incremental Loans ”)unsubscribed amount; provided that (1) each Augmenting Lender shall be subject to the total aggregate principal amount for all such Incremental Loan Commitments shall not (as approval of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (Administrative Agents and the Incremental Loans made thereunder) Issuing Banks (which approvals shall not be unreasonably withheld or delayed). Any increase in the Total Commitment may be made in an amount which is less than a minimum principal amount of $10,000,000 orthe increase requested by the U.S. Borrower if the U.S. Borrower is unable to arrange for, if lessor chooses not to arrange for, the remaining amount permitted pursuant to the foregoing clause Augmenting Lenders.
(1). Each such notice b) The Borrowers and each Incremental Lender shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory execute and deliver to the Administrative Agent, to provide Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment (any of such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached its status as a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to provide all or a portion the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:evidenced thereby.
(Ac) no Default or Event Each of Default shall exist on such Increased Amount Date before or the parties hereto hereby agrees that the Administrative Agents may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Commitment pursuant to this Section 2.23, the outstanding U.S. Loans (1if any) any are held by the U.S. Lenders in accordance with their new U.S. Pro Rata Percentages and the outstanding Canadian Loans (if any) are held by the Canadian Lenders in accordance with their new Canadian Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agents (i) by requiring the outstanding Loans to be prepaid with the proceeds of a new Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Loans to Incremental Loan Commitment and Lenders, (2iii) by permitting the making Borrowings outstanding at the time of any Incremental Loans increase in the Total Commitment pursuant thereto;
(B) to this Section 2.23 to remain outstanding until the Administrative Agent and last days of the respective Interest Periods therefor, even though the Lenders would hold such Borrowings other than in accordance with their new Pro Rata Percentages, or (iv) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (c) shall have received from be subject to indemnification by the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered Borrowers pursuant to Section 7.1(a2.15, but otherwise without premium or penalty.
(d) Notwithstanding the foregoing, no increase in the Total Commitment (or in the Commitment of any Lender) or 7.1(b), as applicable, both before and after giving effect (on addition of a pro forma basis) to (x) any Incremental Loan Commitmentnew Lender shall become effective under this Section 2.23 unless, (yi) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully fundedA) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained set forth in Section 6 Article III hereof and in each other Loan Document shall be true and correct in all material respects, except to respects on and as of the extent any date of such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date increase with the same effect as if though made on and as of such date (date, except for any to the extent such representation representations and warranty that by its terms is made only as of warranties expressly relate to an earlier date, which representation (B) each Borrower and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans each other Loan Party shall be used for general corporate purposes in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and at the time of and immediately after such increase, no Event of Default or Default shall have occurred and be continuing, and (C) there shall have been no material adverse change in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (Borrowers and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower Subsidiaries, taken as a whole, since December 31, 2005, and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the U.S. Borrower and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) legal opinions, board resolutions and an officer's certificate consistent with those delivered on the Closing Date under clauses (a)(i) and (c)(ii)(B) of Section 4.02.
(i) Section 3.04 is amended by deleting "filings with the United States Patent and Trademark Office and the Borrower;United States Copyright Office, recordation of the Mortgages in the offices specified in Schedule 3.19".
(Gj) Section 3.06 is amended by replacing "December 31, 2002" with "December 31, 2005".
(k) Section 3.12 is amended in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):its entirety to read as follows:
Appears in 1 contract
Increase in Commitments. The Company may from time to time in consultation with and upon the consent of the Administrative Agent (a) At any time following the Closing Datesuch consent to not be unreasonably withheld), the Borrower may by written notice to the Administrative Agent elect (which, upon its consent, shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or Revolving Commitment be increased by an amount that is not more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases than $50,000,000 and which will not result in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans Commitment under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed exceeding $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1)225,000,000. Each such notice shall specify set forth the date (each, an “Increased Amount Date”) on which requested amount of the Borrower proposes that any Incremental Loan increase in the Revolving Commitment shall be effective, which shall be a date not less than ten (10) Business Days after and the date on which such increase is requested to become effective (which shall be not fewer than twenty (20) nor more than forty-five (45) days after the date of such notice) and shall offer each Lender the opportunity to increase its Commitment by its Pro Rata Share of the requested increase in the Revolving Commitment. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Company and the Administrative AgentAgent given not more than fifteen (15) days after the date of the Company’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide by all or a portion of the offered amount or decline to increase its Commitment (and any Incremental Loan Lender that does not deliver such a notice within such period of fifteen (15) days shall be deemed to have declined to increase its Commitment). In the event that, on the fifteenth (15th) day after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders (or any number of the Lenders) shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount which is less than the increase in the Revolving Commitment requested by the Company, the Company shall have the right to arrange for one or more banks or other lenders (any such bank or other lender which provides a Commitment hereunder being referred to herein as an “Augmenting Lender”), and any Lender(s), to extend Commitments or increase their existing Commitments in an aggregate amount equal to all or part of the unsubscribed amount on the date on which such increase was requested by the Company in its notice; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Company, Issuing Lender, Swing Line Lender, and Administrative Agent (which approval shall not be unreasonably withheld) and shall execute all such documentation as Administrative Agent shall specify to evidence its status as a Lender hereunder, including an Augmenting Lender Joinder and Assumption Agreement substantially in the form of Exhibit C. If (and only if) Lenders (including Augmenting Lenders) shall have agreed to increase their Commitments or to extend new Commitments, as the case may elect or declinebe, in its sole discretionan aggregate amount not more that $50,000,000, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment increases and such new Commitments shall become effective as on the date specified in the notice delivered by the Company pursuant to the first sentence of this paragraph, and shall be deemed added to the Commitments set forth in Annex A hereof (and Administrative Agent may distribute a revised Annex A to the Lenders and the Company to reflect such additional Commitments) and each Augmenting Lender shall be a Lender hereunder. Notwithstanding the foregoing, no increase in the Commitment of any Lender and no new Commitment of any Augmenting Lender shall become effective under this paragraph unless, on the date of such Increased Amount Date; provided that:
(A) no Default increased or Event of Default shall exist on such Increased Amount Date before or new Commitment and after giving effect to (1) any Incremental Loan Commitment all increased and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitmentnew Commitments, (yi) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties of the Loan Parties contained herein and in Section 6 the other Loan Documents shall be true on and correct in all material respects, except to the extent any as of such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date date with the same effect as if though such representations and warranties had been made on and as of such date (except for any such representation representations and warranty that by its terms is made only as of warranties which expressly relate solely to an earlier datedate or time, which representation representations and warranty warranties shall remain be true and correct on and as of such earlier datethe specific dates or times referred to therein);
, (Dii) no Material Adverse Effect shall have occurred since the Closing Date, (iii) the proceeds Company shall have performed and complied with all covenants and conditions hereof, (iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall exist, (v) the increase in the Commitments shall not contravene any Incremental Loans shall be used for general corporate purposes law applicable to any of the Borrower Lenders, the Company, or any Subsidiary of the Company, and (vi) the Company shall have delivered to the Administrative Agent for the benefit of the Lenders such replacement and new Notes as may be necessary to reflect the increased or new Commitments. Upon the date on which the Commitments are increased, each Lender which has agreed to increase its Subsidiaries (including Permitted Acquisitions);
(E) Commitment and each Incremental Loan Augmenting Lender which has agreed to extend a new Commitment (in accordance with the terms of this Section 6.5) shall, subject to the terms and conditions hereof and in reliance on the Incremental representations and warranties herein set forth, severally make its Pro Rata Share of Revolving Loans made thereunder) shall constitute Obligations in the currencies in which such Loans are outstanding to the Company and purchase from any Issuing Lender and Swing Line Lender its Pro Rata Share of the Borrower and shall be secured and guaranteed with the other Extensions Stated Amount of all Letters of Credit on a pari passu basis;
and of those Swing Line Loans that have been participated to the Lenders in the amount of the increase of its Commitment (F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreementwhich has agreed to increase its Commitment) or in the amount of its new Commitment (in the case of an Augmenting Lender which has agreed to extend new a Commitment), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to . Upon the request of the Administrative Agent, the Incremental Company shall execute and deliver to Administrative Agent for the benefit of the Lenders making any and all other documents, instruments, and agreements necessary or advisable in the reasonable judgment of Administrative Agent to evidence or document the increase in the Commitments, including any amendments hereto, and each of the Lenders and each of the Loan Parties hereby provides its consent hereto and thereto and each Lender hereby authorizes the Administrative Agent, and each Loan Party hereby authorizes the Company, to execute any such Incremental Term Loan documents, instruments, and agreements consistent with the Borrower, but will not in any event have a shorter weighted average life to maturity than terms of this Section 6.5 on its behalf without the remaining weighted average life to maturity necessity of any prior Incremental Term further consent of any Lender or Loan Party. The Administrative Agent and each Lender shall have no obligation to provide any additional credit, commitment, or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan loan under this Section 6.5 nor shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a or any Lender joinder agreement):have any obligation to arrange any such additional credit, commitment, or loan.
Appears in 1 contract
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp)
Increase in Commitments. (a) At The Borrowers may, any time following or from time to time after the later of (i) the Closing DateDate and (ii) the earlier of (A) sixty (60) days after the Closing Date and (B) the date upon which a Successful Syndication is achieved, the Borrower may by written notice to the Administrative Agent elect to (an “Incremental Facility Request”) request the establishment of:
(i) one of incremental or more incremental additional term loan commitments facilities (any such incremental term loan commitmenteach, an “Incremental Term Loan CommitmentFacility”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitmentscommitments thereunder, the “Incremental Loan Term Commitments”) to make additional revolving credit ” and the loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loansthereunder, the “Incremental Loans Term Loans”). Any such Incremental Term Facility may be implemented by increasing the amount of loans and commitments under the existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.21, the Incremental Term Facilities shall be funded on the relevant Increased Amount Date; provided that (1) no Incremental Term Facility shall be incurred on such date to the total extent that the aggregate principal amount for all of such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) Term Facility when combined with the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of all Incremental Term Facilities then outstanding exceeds $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause 150,000,000.
(1). b) Each such notice Incremental Facility Request shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that any the Incremental Loan Commitment Term Commitments and the date the Incremental Term Loans shall be effectivemade available, which shall be a date not less than ten five (105) Business Days after the date on which such notice is delivered to the Administrative AgentAgent (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower may invite any Lender, any Affiliate Borrowers shall notify the Administrative Agent in writing of any the identity of each Lender and/or any Approved Fund, and/or any or other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Personeach, an “Incremental Lender”)) to whom the Incremental Term Commitments have been allocated, which allocation shall be made at the Borrowers’ sole discretion. Any proposed Incremental Lender offered or approached to provide all or a portion of any the Incremental Loan Commitment Term Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Commitment (it being understood that the Borrowers have no obligation to approach any Lender, and no Lender is committing to provide any Incremental Term Commitment until such time as such Lender agrees in writing to provide all or a portion of the Incremental Loan Term Commitment. Any Incremental Loan Commitment shall become effective as ).
(c) As of such any Increased Amount Date; provided that:
(Ai) no Default or Event of Default shall exist on and be continuing or would immediately result from the incurrence of such Increased Amount Date before or after giving effect Incremental Term Facility;
(ii) the incurrence of any such Incremental Term Facility shall be in compliance with all obligations under Regulation U;
(iii) to the extent that such Incremental Term Loans are not made as part of the Term Facility (1in which case all terms thereof shall be identical to the terms of the Term Facility):
(A) the final maturity date under any Incremental Loan Commitment and (2) Term Facility shall not be earlier than the making of any Incremental Loans pursuant theretoTerm Maturity Date;
(B) the Administrative Agent amortization requirements for any Incremental Term Facility shall be determined by the Borrowers and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall have received from be equal to or greater than the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory Weighted Average Life to Maturity of the Administrative Agent, that Initial Term Loans outstanding under the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after Term Facility (without giving effect to any prepayments (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewithother than amortization));
(C) each of the representations and warranties contained in Section 6 Incremental Term Facility shall not be true and correct in all material respects(x) guaranteed by any Person who is not, except to or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date)Loan Documents;
(Div) if the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions All-In Yield applicable to any Incremental Term Loan Loans under any Incremental Term Facility shall be 0.50% per annum or more higher than the corresponding All-In Yield on the Term Facility as of the date of incurrence, then the All-In Yield applicable to the Term Facility shall be increased to cause the then applicable All-In Yield for the Term Facility to equal the All-In Yield then applicable to the Incremental Term Loans minus 0.50% per annum (this provision, the “MFN Protection”); and
(v) the terms and provisions of the Incremental Term Commitments shall be as agreed between the Borrowers and the applicable Incremental Lenders providing such Incremental Term Commitments, subject to satisfying the requirements of this Section 2.21(c) and the terms of such Incremental Term Commitments shall be effected pursuant to an amendment to this Agreement (an “Incremental Amendment”) executed and delivered by the Borrowers, the Administrative Agent and one or more Incremental Lenders; provided that (x) such Incremental Term Loans may participate in any mandatory prepayment under Section 2.10 hereof on a pro rata basis (or on a basis less than pro rata), but not on a basis that is more favorable than pro rata and (y) with respect to terms not addressed by this Section 2.21(c), if such terms (other than pricing terms) of the Incremental Term Commitments are not, taken as a whole, substantially consistent with the terms of the Term Facility, such terms shall not be more restrictive, when taken as a whole, than the terms of the Term Facility (except for terms applying after the Term Maturity Date or Extended Maturity Date, as applicable).
(d) On any Increased Amount Date on which any Incremental Term Commitment becomes effective or Incremental Term Loans are funded, subject to the foregoing terms and conditions, each Incremental Lender to the extent not already a Lender, shall become a Lender hereunder with respect to such Incremental Term Commitment or Incremental Term Loan; provided that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall be reasonably satisfactory to the Administrative Agent and the Borrower;Borrowers to the extent consent would be required under Section 9.04(b) for an assignment of Loans to such Incremental Lender.
(Ge) For purposes of this Agreement, any Incremental Term Loans shall be deemed to be Loans. Each Incremental Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the case reasonable opinion of each Incremental Revolving Credit Increase (the terms Administrative Agent and the Borrowers, to effect the provisions of which shall be set forth in a Lender joinder agreement):this Section 2.21.
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Sources: Credit Agreement (Global Infrastructure Investors III, LLC)
Increase in Commitments. (a) At any From time following to time on and after the Closing Date, the Borrower may by written notice Restatement Effective Date and prior to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (Tranche 1 Termination Date so long as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist have occurred and be continuing, the Borrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 1 Lenders), propose to increase the aggregate amount of the Tranche 1 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $250,000,000. The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) having another lender or lenders (each, an “Additional Tranche 1 Lender”) become party to this Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(b) From time to time on and after the Restatement Effective Date and prior to the Tranche 2 Termination Date so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $250,000,000. The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more Eligible Assignees (each, an “Additional Tranche 2 Lender” and collectively with the Additional Tranche 1 Lenders, the “Additional Lenders”) become party to this Agreement, (y) agreeing with any Tranche 2 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(c) Upon any increase in the amount of the Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to this Section 2.20 (each, an “Additional Commitment”):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (each, an “Increasing Lender”) shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date, undertake an Additional Commitment (or, in the case of an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on such Increased Amount Date before or date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(ii) The Borrowers shall in the event of an increase in the Tranche 1 Commitments, in coordination with the Administrative Agent, repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in each case so that the Tranche 1 Lenders participate in each Borrowing pro rata on the basis of their respective Tranche 1 Commitments (after giving effect to (1any increase in the Tranche 1 Commitments pursuant to this Section 2.20) any Incremental Loan Commitment and (2) amounts payable under Section 2.18 as a result of the making of any Incremental Loans pursuant theretoactions required to be taken under this Section 2.20, shall be paid in full by the Borrowers;
(Biii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the Administrative Agent and the Lenders forms required by Section 2.17(d); and
(iv) Any Additional Commitment shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory be subject to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each prior written approval of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in a Lender joinder agreement):Issuing Lender.
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Increase in Commitments. (a) At The Borrower may on one occasion at any time following not later than three months prior to the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request that the establishment of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, total Commitments be increased by an “Incremental Term Loan Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases amount that will not result in the Revolving total Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (exceeding $400,000,000 minus the amount of any such increase, an “Incremental Revolving Credit Increase” and, together with reduction of the Incremental Term Loans, Commitments pursuant to Section 2.09. Such notice shall set forth the “Incremental Loans ”); provided that (1) amount of the requested increase in the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after 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 Applicable Percentage of the proposed increased amount. Each Lender shall, by notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Borrower and the Administrative AgentAgent given not more than 30 days after the date of the Borrower’s notice, either agree to provide an Incremental Loan increase its Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide 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 Incremental Loan Commitment may elect Lender that does not deliver such a notice within such period of 30 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or declinedeemed to have declined being a “Non-Increasing Lender”). In the event that, in its sole discretionon the 30th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Administrative Agent may arrange for one or more banks or other financial institutions (any such bank or other financial institution referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Borrower and the Administrative Agent (which approvals shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall specify to evidence its Commitment and its status as a Pro Forma Compliance Certificate demonstrating, Lender hereunder. Increases and new Commitments created pursuant to this clause (a) shall become effective on the date specified in form and substance reasonably satisfactory the notice delivered by the Borrower pursuant to the Administrative Agentfirst sentence of this paragraph. Notwithstanding the foregoing, that no increase in the Borrower is total Commitments (or in compliance with the financial covenants set forth in Section 7.10 based Commitment of any Lender) shall become effective under this paragraph unless, (i) on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b)date of such increase, as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained of the Borrower set forth in Section 6 this Agreement shall be true and correct in all material respectsand no Default shall have occurred and be continuing, except and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (c) and (d) of Section 4.01 as to the extent any such representation corporate power and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used for general corporate purposes authority of the Borrower to borrow hereunder after giving effect to such increase and its Subsidiaries (including Permitted Acquisitions);iii) following any such increase pursuant to this Section, no Lender shall have a Commitment representing more than 30% of the total Commitments.
(Eb) On the effective date (the “Increase Effective Date”) of any increase in the total Commitments pursuant to Section 2.05(a) (the “Commitment Increase”), (i) the aggregate principal amount of the Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Incremental Loan Commitment (Increasing Lender and the Incremental Loans made thereunder) each Augmenting Lender that shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in have been a Lender joinder agreement), such Incremental Term Loan will mature and amortize in a manner reasonably acceptable prior to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the latest Termination Date then in effect for any prior Incremental Term Loan or any Revolving Loan and except as provided above, all other terms and conditions applicable to any Incremental Term Loan Commitment Increase shall be reasonably satisfactory pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings and (B) the Borrower;
product of (G1) such Lender’s Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender that shall not have been a Lender prior to the Commitment Increase shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Augmenting Lender’s Applicable 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 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 Applicable 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 Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the case aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Incremental Revolving Credit Increase Subsequent Borrowing (calculated after giving effect to the terms Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of which each Eurodollar Loan shall be set forth in a Lender joinder agreement):subject to indemnification by the 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.
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