Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom, Borrower may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4).
Appears in 2 contracts
Sources: Credit Agreement (Vectren Corp), Credit Agreement (Vectren Corp)
Increases in Aggregate Commitment. So long (i) Subject to the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, make a request (a “Facility Increase Request”), by notice to the Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default exists or shall then exist nor would result therefrom, Borrower may, from time occur immediately after giving effect to time, by means of a letter delivered such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the Administrative Agent extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit FC hereto, and acknowledged by Guarantorthe Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, request that the Aggregate Commitment each such Note to be increased to up to $330,000,000 (less in the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender’s Commitment or increased Commitment (as applicable); provided that no Additional Lender (G) the Borrower shall be added as a party hereto without have delivered to the written consent Agent opinions of counsel (substantially similar to the Administrative Agent (which shall not be unreasonably withheldforms of opinion referred to in Section 4.1(v). Any , modified to apply to the increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the satisfaction of new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the conditions precedent referred to below, be effective three Business Days after Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the date on which the Administrative Agent has received and accepted the applicable increase letter shall have reasonably requested in the form of Annex 1 to Exhibit F (in the case of an connection with such new Commitment or increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lenderas applicable). The effectiveness form and substance of each the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase to in the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated Commitment.
(ii) On the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a reallocation payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the Commitments as a result of a non-pro-rata increase outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the Aggregate Commitment may require prepayment proportion of all their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or portions of certain Advances after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such increase date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof.
(iii) On the Increase Date and any such prepayment shall be subject to the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 3.42.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased).
(iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.
Appears in 2 contracts
Sources: Credit Agreement (Ryland Group Inc), Credit Agreement (Ryland Group Inc)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom, Borrower may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 200,000,000 (less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each each, an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 2.19 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4).the
Appears in 1 contract
Sources: Credit Agreement (Vectren Corp)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom(i) Subject to the conditions set forth below, Borrower the Borrowers may, upon at least ten (10) days (or such other period of time agreed to between the Agent and the Borrowers) prior written notice to the Agent and the Lenders, increase the aggregate amount of the Commitments from time to time, either by means designating a lender not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent (such consent not to be unreasonably withheld) of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged Agent) or by Guarantor, request agreeing with an existing Lender that the Aggregate Commitment such Lender's Commitment(s) shall be increased to up to $330,000,000 (less thus increasing the aggregate amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by Commitments); provided that:
(a) increasing the Commitment no Default or Event of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent Default shall have received each occurred and be continuing hereunder as of the following documents, each dated the effective date of such increase increase;
(or such other date as b) the representations and warranties made by the Borrowers and contained in Article IV hereof shall be reasonably acceptable true and correct on and as of the effective date with the same effect as if made on and as of such date (other than those representations and warranties that by their terms speak as of a particular date, which representations and warranties shall be true and correct as of such particular date);
(c) the amount of such increase in the aggregate amount of the U.S. Commitments shall not be greater than $50,000,000, and shall not cause the aggregate amount of all U.S. Commitments to exceed $300,000,000, and the amount of such increase in the aggregate amount of the Canadian Commitments shall not be greater than $20,000,000, and shall not cause the aggregate amount of all Canadian Commitments to exceed $50,000,000;
(d) The Borrowers and the Lender or lender not theretofore a Lender, shall execute and deliver to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, a Lender Addition and Acknowledgement Agreement, in form and substance reasonably acceptable satisfactory to the Administrative Agent and acknowledged by the Agent and each Borrower (a "Lender Addition and Acknowledgement Agreement");
(e) no existing Lender shall be obligated in any way to increase any of its Commitment; and
(f) the Borrowers shall have complied with such other conditions in connection with such increase as may be required by the Agent.
(ii) Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date specified in a Lender Addition and Acknowledgement Agreement, such existing Lender shall have a Commitment or Commitments as therein set forth or such other Lender shall become a Lender with a Commitment or Commitments as therein set forth and all the rights and obligations of a Lender with such a Commitment or Commitments hereunder.
(iii) Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any Note or Notes, if requested, subject to such addition and assumption and the approval by the Agent of any lender party thereto that is not an existing Lender, the Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in this Section 2.14 have been satisfied:
(a) accept such Lender Addition and Acknowledgement Agreement;
(b) such other documents, opinions of counsel and certificates as record the Administrative Agent may reasonably request, each information contained therein in form and substance reasonably acceptable the Register; and
(c) give prompt notice thereof to the Administrative Agent. The Administrative Agent shall promptly notify Borrower Lenders and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 Borrowers and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject deliver to the provisions of Section 3.4)Lenders a schedule reflecting the new Commitments.
Appears in 1 contract
Increases in Aggregate Commitment. So long as The Borrower shall have the right, no Default or Unmatured Default exists or would result therefrommore frequently than once in any twelve month period, Borrower may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the each a "Commitment Increase Request") in a minimum amount of any previous reductions $10,000,000 by obtaining additional Commitments, either from one or more of the Lenders or one or more other lending institutions, provided that the Aggregate Commitment pursuant to Section 2.5 abovehereunder, together with the Aggregate Commitment under (and as defined in) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment 364-Day Credit Agreement, shall in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto event exceed $200,000,000 without the written consent of all of the Administrative Agent (which shall not be unreasonably withheld)Lenders. Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender2.6(c) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance effected concurrently with each Lender’s pro rata share of all outstanding Advances prior to any a proportionate increase in the Aggregate Commitment under (and as defined in) the 364-Day Credit Agreement. In the event of such a Commitment Increase Request, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have any obligation to increase its Commitment pursuant to this Section 2.23, a reallocation request by the Borrower hereunder. To the extent that all of the Commitments Lenders do not elect to participate in such requested increase after being afforded an opportunity to do so, then the Borrower shall consult with the Agent as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions number, identity and requested Commitments of Section 3.4).additional financial institutions which the Borrower may, upon the written consent of the Agent (which consent shall not be unreasonably
Appears in 1 contract
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefromSubject to the terms and conditions set forth herein, Borrower may, the Parent shall have the right to cause from time to time, by means of a letter delivered to the Administrative Agent substantially time (but not more than twice in the form of Exhibit F, and acknowledged by Guarantor, request that any calendar year) an increase in the Aggregate Commitment be increased to up to $330,000,000 (less the amount of any previous reductions of the Aggregate a “Commitment pursuant to Section 2.5 aboveIncrease”) by (a) increasing the Commitment of allowing one or more existing Lenders that have agreed to such increase their respective Commitments (each, an “Increasing Lender”) and/or (b) by adding to this Agreement one or more commercial banks or other Persons as a party hereto additional financial institutions that are not already Lenders hereunder (each each, an “Additional Lender”); provided that (i) with a each Commitment Increase shall be in an amount agreed that is not less than $25,000,000, (ii) no Commitment Increase shall cause the Aggregate Commitment to by any such Additional Lender; provided that exceed $2,500,000,000, (iii) no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent Agent, each Issuing Bank and each Swing Line Lender (which shall not to be unreasonably withheld, conditioned or delayed), (iv) if a Commitment Increase involves any Increasing Lender, the Borrowers and such Increasing Lender shall execute an agreement substantially in the form of Exhibit B hereto and (v) if a Commitment Increase involves any Additional Lender, the Borrowers and such Additional Lender shall execute an agreement substantially in the form of Exhibit C hereto. No Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion). Any increase No consent of any Lender (other than the Lenders participating in the Aggregate Commitment Increase) shall be required for any Commitment Increase. (hhh) Each Commitment Increase pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be 2.20 shall become effective three Business Days after on the date on which agreed by the Parent, the Administrative Agent has received and accepted the applicable increase letter in relevant Increasing Lenders and/or Additional Lenders, and the form of Annex 1 to Exhibit F Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Commitment Increase shall become effective under this paragraph unless (in i) on the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case proposed date of the addition of an Additional Lender). The effectiveness of each such increase to Commitment Increase, the Aggregate Commitment conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be subject to the conditions precedent that satisfied and the Administrative Agent shall have received each a certificate to that effect dated such date and executed by an Authorized Officer and (ii) the Administrative Agent shall have received such documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the following documents, each dated the effective date of Borrowers to borrow hereunder after giving effect to such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates Commitment Increase as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4).
Appears in 1 contract
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom(i) Subject to the provisions of Section 2.5(d)(v), Borrower may, at any time and from time to time, request ("Facility Increase Request"), by means notice to Administrative Agent, Administrative Agent's approval of a letter delivered to an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of Administrative Agent, the Aggregate Commitment may be so increased either by having financial institutions (other than Banks then holding a Commitment hereunder) approved by Borrower and Administrative Agent ("New Banks") become Banks hereunder and/or by having any one or more of Banks then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved by Borrower and Administrative Agent increase the amount of their Commitments (any such Bank that elects to increase its Commitment and any New Bank being hereinafter referred to as a "Additional Bank"), provided that (A) unless otherwise agreed by Borrower and Administrative Agent, the Commitment of any New Bank shall not be less than $25,000,000 (and, if in excess thereof, in integral multiples of $5,000,000), (B) unless otherwise agreed by Borrower and Administrative Agent, the increase in the Commitment of any Bank shall be not less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000); (C) the Aggregate Commitment shall not exceed $450,000,000; (D) Borrower and each Additional Bank shall have executed and delivered a commitment and acceptance (the "Commitment and Acceptance") substantially in the form of Exhibit FC hereto, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of accepted and executed the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4).same;
Appears in 1 contract
Sources: Credit Agreement (MDC Holdings Inc)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom, (i) The Borrower may, at any time and from time to time, by means of a letter delivered notice to the Administrative Agent, request an increase in the Aggregate Commitment within the limitations hereafter described, which notice shall set forth the amount of such increase. The Aggregate Commitment may be so increased either by having one or more New Lenders become Lenders and/or by having any one or more of the then existing Lenders (at their respective election in their sole discretion) that have been approved by the Borrower and the Agent (any such Lender or any New Lender being herein referred to as an "Additional Lender") increase the amount of their Commitments, provided that (a) unless otherwise approved by the Agent, the Commitment of any New Lender shall be in an amount not less than $5,000,000 (and, if in excess thereof, in an integral multiple of $1,000,000); (b) unless otherwise approved by the Agent, any single increase in the Aggregate Commitment shall be in an aggregate amount of not less than $5,000,000 (and, if in excess thereof, in an integral multiple of $1,000,000); and (c) the Aggregate Commitment shall not exceed $125,000,000.
(ii) As a condition to any increase in the Aggregate Commitment, (a) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the "Commitment and Acceptance") substantially in the form of Exhibit FJ hereto, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less Agent shall have accepted and executed the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or same; (b) adding one or more commercial banks or other Persons as a party hereto (each if requested by an “Additional Lender”) with , the Borrower shall have executed and delivered to the Agent a Commitment in an amount agreed Ratable Note and/or Competitive Bid Note payable to by any the order of such Additional Lender; provided that no Additional Lender (c) the Guarantors shall be added as a party hereto without have consented in writing to the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject and shall have reaffirmed their Guaranties; (d) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such increase in the Aggregate Commitment; and (e) the Borrower shall have delivered to the satisfaction Agent an opinion of the conditions precedent referred counsel (substantially similar to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 opinion provided for in Section 4.1.9, modified to Exhibit F (in apply to the case of an increase in the Aggregate Commitment and to each Note, Commitment and Acceptance, consent of an existing Lender) or assumption letter Guarantors, and other documents executed and delivered in connection with such increase in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional LenderAggregate Commitment). The effectiveness form and substance of each such increase to the Aggregate Commitment documents required under clauses (a) through (e) above shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably fully acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and provide written notice to all of the Lenders of the effectiveness hereunder of any increase in the amount Aggregate Commitment hereunder and shall furnish to any Lender copies of the Aggregate Commitment pursuant to this Section 2.23 and documents required under clauses (a) through (e) above.
(iii) Upon the effective date of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to the provisions hereof (the "Increase Date"), which Increase Date shall be mutually agreed upon by the Borrower, each Additional Lender and the Agent, each Lender that is not an Additional Lender ("Selling Lender") hereby sells, grants, assigns and conveys to each Additional 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 Ratable Loans and participations in Facility LCs in the respective dollar amounts and percentages necessary so that, from and after such sale, each such Selling Lender's outstanding Ratable Loans shall equal such Selling Lender's Pro Rata Share (calculated based upon the Increased Aggregate Commitment) of the outstanding Ratable Loans under this Agreement and such Selling Lender shall hold a participation interest in each Facility LC equal to its Pro Rata Share thereof. Effective on the Increase Date, each Additional Lender hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Additional Lender hereby agrees that its respective purchase price for the portion of the outstanding Ratable Loans and participations in Facility LCs purchased hereby shall equal the respective dollar amount necessary so that, from and after such payments, each Additional Lender's outstanding Ratable Loans shall equal such Additional Lender's Pro Rata Share (calculated based upon the increased Aggregate Commitment) of the outstanding Ratable Loans; no additional purchase price shall be payable in respect of the participations in Facility LCs granted, assigned and conveyed hereunder. The purchase price in respect of the interests in Ratable Loans granted, assigned and conveyed hereunder shall be payable as follows:
(a) with respect to all Floating Rate Loans, on the Increase Date by wire transfer of immediately available funds to the Agent and (b) with respect to all Eurodollar Ratable Loans, unless otherwise agreed to among the Additional Lenders, the Selling Lenders, the Borrower and the Agent, on the earlier of (i) the last day of the then current Interest Period by wire transfer of immediately available funds to the Agent and (ii) the date on which any such Eurodollar Ratable Loan either becomes due (by acceleration or otherwise) or is prepaid (such earlier date being hereinafter referred to as the "Settlement Date") and, for purposes of calculating interest due and payable with respect to the Eurodollar Ratable Loans, the Lenders' Pro Rata Shares of each such outstanding Eurodollar Ratable Loan shall not be adjusted by virtue of the applicable increase until such Settlement Date. The Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Additional Lender that such Selling Lender owns the Ratable Loans and participations in Facility LCs being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Ratable Loans, except for participations which will be extinguished upon payment to such Selling Lender of an amount equal to the portion of the outstanding Ratable Loans being sold by such Selling Lender. Each Additional Lender hereby acknowledges and agrees that, except for each Selling Lender's representations and warranties contained in the foregoing sentence, each such Additional Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Borrower hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the sale and assignment of any Eurodollar Ratable Loan hereunder on the terms and in the manner as set forth in Section 2.233.4.
(iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a reallocation commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Commitments as a result of a non-pro-rata Borrower or the Agent to give or grant any Lender the right to increase in the Aggregate its Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and hereunder at any such prepayment shall be subject to the provisions of Section 3.4)time.
Appears in 1 contract
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom, Borrower may, from time to (i) At any time, the Borrower may arrange (in consultation with the Administrative Agent) for the Aggregate Commitment to be increased by means an aggregate amount of up to $400,000,000 without the prior written consent of any Lender whose Commitment is not being increased; provided, that any such increase shall be in a letter delivered minimum amount of $5,000,000 (and in multiples of $5,000,000 if in excess thereof); provided, further, that the Aggregate Commitment shall at no time exceed $1,000,000,000 without the consent of the Required Lenders. The Borrower shall provide notice of such proposed increase in a written notice to the Administrative Agent substantially and the Lenders not less than ten (10) 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 form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased and the proposed effective date of such increase. No Lender shall have any obligation to up to $330,000,000 (less the amount of any previous reductions of the Aggregate increase its Commitment pursuant to Section 2.5 abovea Commitment Increase Notice, and the Borrower shall not be required to offer any Lender an opportunity to participate in the requested increase.
(ii) by Not later than three (a3) increasing Business Days prior to the Commitment proposed effective date, the Borrower shall notify the Administrative Agent of one or more Lenders (i) any Lender (each, a “Proposed Increase Lender”) that shall have agreed to increase its existing Commitment in connection with such increase and/or Commitment Increase Notice and (bii) adding one or more commercial banks or any financial institution (other Persons as than an Ineligible Institution) that shall have agreed to become a new “Lender” party hereto (each an each, a “Additional Proposed New Lender”) in connection with a such Commitment Increase Notice. Each Proposed Increase Lender and Proposed New Lender, and the allocation of the proposed increase in an amount agreed to by any such Additional Lender; provided that no Additional Lender the Aggregate Commitment, shall be added as a party hereto without subject to the written consent of the Administrative Agent Agent, each LC Issuer and the Swing Line Lender (which consent shall not be unreasonably withheld). Any If the Borrower shall not have arranged for Lenders and Proposed New Lenders to commit to increases in their Commitments or new Commitments, as applicable, in an aggregate amount equal to the proposed increase in the Aggregate Commitment, then the Borrower shall be deemed to have reduced the amount of its Commitment pursuant to this Section 2.23 shall, subject Increase Notice to the satisfaction aggregate amount of such increases and new Commitments. The Administrative Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the conditions precedent referred to belowamount of each Lender’s and Proposed New Lender’s Commitment and the amount of the Aggregate Commitment, which amount shall be effective three on the following Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F Day.
(in the case of an iii) Any increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the following conditions precedent precedent: (a) the Borrower shall have obtained the consent thereto of each Guarantor and its reaffirmation of any Loan Documents executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (b) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects (or, to the extent qualified by materiality or Materially Adverse Effect, in all respects) as though made on such date (unless any such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects (or, to the extent qualified by materiality or Materially Adverse Effect, in all respects) as of such date) and no Default or Unmatured Default shall have occurred and then be continuing, (c) the Borrower, the Administrative Agent, each LC Issuer and each Proposed New Lender or Proposed Increase Lender shall have executed and delivered a Commitment and Acceptance (a “Commitment and Acceptance”) substantially in the form of Exhibit I hereto, (d) any Proposed New Lender that is organized under the laws of a jurisdiction outside of the United States shall provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Act and (e) the Borrower and any Proposed New Lender shall otherwise have executed and delivered such other instruments, documents and agreements as the Administrative Agent shall have received each of the following documents, each dated the effective date of reasonably requested in connection with such increase (or such other date as 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 acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as documented by the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative AgentBorrower. The Administrative Agent shall promptly notify Borrower and the Lenders Upon satisfaction of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior conditions precedent to any increase in the Aggregate Commitment pursuant to this Section 2.23Commitment, a reallocation the Administrative Agent shall promptly advise the Borrower and each Lender of the Commitments as a result effective date of a non-pro-rata such increase. Upon the effective date of any increase in the Aggregate Commitment may require prepayment that is provided 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 all a Lender hereunder. Nothing contained herein shall constitute, or portions of certain Advances otherwise be deemed to be, a commitment on the date part of any Lender to increase its Commitment hereunder at any time.
(iv) Upon the execution and delivery of such Commitment and Acceptance, the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit and loan exposure as are necessary ratably among the Lenders to give effect to each such increase (in the Aggregate Commitment; provided, that the Borrower hereby agrees to compensate each Lender for all losses, expenses and liabilities incurred by such Lender in connection with the sale and assignment of any such prepayment shall be subject to Eurodollar Loans hereunder on the provisions of terms and in the manner as set forth in Article III, including, without limitation, Section 3.4).
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Increases in Aggregate Commitment. So long (i) Subject to the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, request (“Facility Increase Request”), by notice to the Agent, the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having financial institutions (other than the Lenders then holding a Commitment hereunder) approved by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) no Default or Unmatured Default exists or shall then exist nor would result therefromoccur immediately after giving effect to such increase, (B) unless otherwise agreed by the Borrower mayand the Agent, from time to timethe Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by means the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) the Aggregate Commitment shall not exceed $650,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a letter delivered to commitment and acceptance (the Administrative Agent “Commitment and Acceptance”) substantially in the form of Exhibit FC hereto, and acknowledged by Guarantorthe Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, request that the Aggregate Commitment each such Note to be increased to up to $330,000,000 (less in the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender’s Commitment or increased Commitment (as applicable); provided that no Additional Lender (G) the Borrower shall be added as a party hereto without have delivered to the written consent Agent opinions of counsel (substantially similar to the Administrative Agent (which shall not be unreasonably withheldforms of opinion referred to in Section 4.1(v). Any , modified to apply to the increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the satisfaction of new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the conditions precedent referred to below, be effective three Business Days after Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the date on which the Administrative Agent has received and accepted the applicable increase letter shall have reasonably requested in the form of Annex 1 to Exhibit F (in the case of an connection with such new Commitment or increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lenderas applicable). The effectiveness form and substance of each the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase to in the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated Commitment.
(ii) On the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a reallocation payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the Commitments as a result of a non-pro-rata increase outstanding Floating Rate Advances held by the Lenders, to cause the principal amount outstanding under the Floating Rate Loans made by all Lenders (including any Additional Lender) to be in the Aggregate Commitment may require prepayment proportion of all their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding Floating Rate Loans held by each Lender, and each such payment shall constitute a Floating Rate Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or portions of certain Advances after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such increase date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Loan equal to its Pro Rata Share thereof.
(iii) On the Increase Date and any such prepayment shall be subject to the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 3.42.5.2(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased).
(iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.
Appears in 1 contract
Sources: Credit Agreement (Ryland Group Inc)
Increases in Aggregate Commitment. So long as The Borrower shall have the right, no Default or Unmatured Default exists or would result therefrommore frequently than once in any twelve month period, Borrower may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the each a "Commitment Increase Request") in a minimum amount of any previous reductions $10,000,000 by obtaining additional Commitments, either from one or more of the Lenders or one or more other lending institutions, provided that the Aggregate Commitment pursuant to Section 2.5 abovehereunder, together with the Aggregate Commitment under (and as defined in) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment Three Year Credit Agreement, shall in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto event exceed $200,000,000 without the written consent of all of the Administrative Agent (which shall not be unreasonably withheld)Lenders. Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall2.6(c) shall be effected concurrently with a proportionate increase in the Aggregate Commitment under (and as defined in) the Three Year Credit Agreement. In the event of such a Commitment Increase Request, subject each of the Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the satisfaction Aggregate Commitment. No Lender shall have any obligation to increase its Commitment pursuant to a request by the Borrower hereunder. To the extent that all of the conditions precedent referred Lenders do not elect to belowparticipate in such requested increase after being afforded an opportunity to do so, be effective three Business Days after then the date on Borrower shall consult with the Agent as to the number, identity and requested Commitments of additional financial institutions which the Administrative Borrower may, upon the written consent of the Agent has received and accepted the applicable increase letter (which consent shall not be unreasonably withheld), invite to participate in the form Aggregate Commitment. In the event that the Borrower and one or more of Annex 1 to Exhibit F the Lenders (in the case of or other financial institutions) shall agree upon such an increase in the Aggregate Commitment, the Borrower, the Agent and each Lender or other financial institution increasing its Commitment of or extending a new Commitment shall enter into an existing Lender) or assumption letter in amendment to this Agreement setting forth the form of Annex 2 to Exhibit F (in the case amounts of the addition Commitments, as so increased, providing that the financial institutions extending new Commitments shall be Lenders for all purposes of an Additional Lenderthis Agreement and the other Loan Documents, and setting forth such additional provisions as the Agent shall consider reasonably appropriate. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and delivery of such amendment as provided above, and upon satisfaction of such other conditions as the Agent may reasonably specify upon the request of the financial institutions that are increasing or extending new Commitments (including the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement shall be deemed to be amended accordingly. The effectiveness of each Notwithstanding anything in this Section 2.6(c) to the contrary, no such increase to in the Aggregate Commitment shall be subject effective if (A) a Default or Unmatured Default shall exist on the date any such Commitment Increase Request is made or after giving effect to the conditions precedent that requested increase or (B) the Administrative Agent Borrower shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of voluntarily reduced the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances at any time prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date making of such increase (and any such prepayment shall be subject to the provisions of Section 3.4)Commitment Increase Request.
Appears in 1 contract
Increases in Aggregate Commitment. So long as (i) Subject to the conditions set forth below, the Borrower may, upon at least ten (10) days (or such other period of time agreed to between the Agent and the Borrower) prior written notice to the Agent and the Lenders, increase the Aggregate Commitments from time to time, either by designating a lender not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent (such consent not to be unreasonably withheld) of the Agent) or by agreeing with an existing Lender that such Lender's Commitment shall be increased (thus increasing the Aggregate Commitments); provided that:
(a) no Default or Unmatured Default exists or would result therefrom, Borrower may, from time to time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which shall not be unreasonably withheld). Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each occurred and be continuing hereunder as of the following documents, each dated the effective date of such increase increase;
(or such other date as b) the representations and warranties made by the Borrower and contained in Article V hereof shall be reasonably acceptable true and correct on and as of the effective date with the same effect as if made on and as of such date (other than those representations and warranties that by their terms speak as of a particular date, which representations and warranties shall be true and correct as of such particular date);
(c) the amount of such increase in the Aggregate Commitments shall not be greater than $50,000,000, and shall not cause the Aggregate Commitments to exceed $150,000,000;
(d) The Borrower and the Lender or lender not theretofore a Lender, shall execute and deliver to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, a Lender Addition and Acknowledgement Agreement, in form and substance reasonably acceptable satisfactory to the Administrative Agent and acknowledged by the Agent and each Borrower;
(e) no existing Lender shall be obligated in any way to increase its Commitment;
(f) the Agent shall consent to such increase and the Borrower shall have complied with such other conditions in connection with such increase as may be required by the Agent.
(ii) Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date specified in a Lender Addition and Acknowledgement Agreement, such existing Lender shall have a Commitment as therein set forth or such other Lender shall become a Lender with a Commitment as therein set forth and all the rights and obligations of a Lender with such a Commitment hereunder.
(iii) Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any Note or Notes, if requested, subject to such addition and assumption and the written consent to such addition and assumption, the Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in this Section 2.23 have been satisfied:
(a) accept such Lender Addition and Acknowledgement Agreement;
(b) such other documents, opinions of counsel and certificates as record the Administrative Agent may reasonably request, each information contained therein in form and substance reasonably acceptable the Register; and
(c) give prompt notice thereof to the Administrative Agent. The Administrative Agent shall promptly notify Lenders and the Borrower and deliver to the Lenders of a schedule reflecting the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4)new Commitments.
Appears in 1 contract
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom(i) Subject to the provisions of this Section 2.5(d)(i) and Section 2.5(d)(v), Borrower may, at any time and from time to time, request (“Facility Increase Request”), by means notice to Administrative Agent, Administrative Agent’s approval of a letter delivered to an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of Administrative Agent, the Aggregate Commitment may be so increased either by having financial institutions (other than Lenders then holding a Commitment hereunder) approved by Borrower and Administrative Agent (“New Lenders”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved by Borrower and Administrative Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as a “Additional Lender”), provided that (A) unless otherwise agreed by Borrower and Administrative Agent, the Commitment of any New Lender shall not be less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000), (B) unless otherwise agreed by Borrower and Administrative Agent, the increase in the Commitment of any Lender shall be not less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000); (C) the Aggregate Commitment shall not exceed $1,750,000,000; (D) Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit FC hereto, and acknowledged by GuarantorAdministrative Agent shall have accepted and executed the same; (E) Borrower shall have executed and delivered to Administrative Agent a Note or Notes payable to the order of each Additional Lender, request that the Aggregate Commitment each such Note to be increased to up to $330,000,000 (less in the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender’s Commitment or increased Commitment (as applicable); provided that no Additional Lender (F) Borrower shall be added as a party hereto without the written consent of the have delivered to Administrative Agent an opinion of counsel and certificate of Borrower’s general counsel (which shall not be unreasonably withheld). Any substantially similar to the forms of opinion attached hereto as Exhibit E, modified to apply to the increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject and each Note and Commitment and Acceptance executed and delivered in connection therewith); (G) Guarantors shall have consented in writing to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the new Commitments or increases in Commitments (as applicable) and shall have agreed that their Guaranties continue in full force and effect; and (H) Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as Administrative Agent has received and accepted the applicable increase letter shall have reasonably requested in the form of Annex 1 to Exhibit F (in the case of an connection with such new Commitment or increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lenderas applicable). The effectiveness form and substance of each the documents required under clauses (D) through (H) above shall be fully acceptable to Administrative Agent. Administrative Agent shall promptly provide written notice to Lenders following any such increase to in the Aggregate Commitment hereunder and shall be subject promptly furnish to the conditions precedent that the Administrative Agent shall have received each Lenders copies of the following documentsdocuments required under clauses (D), each dated (F), (G) and (H) above.
(ii) On the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and Administrative Agent, each Additional Lender shall make a payment to Administrative Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). Borrower hereby irrevocably authorizes each Additional Lender to fund to Administrative Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any LIBOR Advances that are outstanding on the Increase Date, but, if Borrower shall at any time on or after such Increase Date convert or continue any LIBOR Advance outstanding on such Increase Date, Borrower shall be deemed to repay such LIBOR Advance on the date of the conversion or continuation thereof and then to reborrow as a LIBOR Advance a like amount on such date so that each Additional Lender shall make a LIBOR Loan on such date in its pro rata share of such LIBOR Advance. Each Additional Lender shall also make a Loan in the amount of its pro rata share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of an Event of Default prior to the date on which an Additional Lender is holding Loans equal to its pro rata share of all Advances hereunder, such Additional Lender shall, upon notice from Administrative Agent, on or after the date on which the Obligations are accelerated or become due following such Event of Default, pay to Administrative Agent (for the account of the other Lenders, to which Administrative Agent shall pay their pro rata shares upon receipt) a sum equal to such Additional Lender’s pro rata share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Loan equal to its pro rata share thereof.
(iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5(d)(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from Lenders party to this Section 2.23Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility Letter of Credit then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility Letter of Credit in the proportion of their respective Commitments (as so increased).
(iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a reallocation commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the Commitments as a result part of a non-pro-rata Borrower or Administrative Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.
(v) Notwithstanding anything to the contrary contained herein, Borrower may not request an increase in the Aggregate Commitment during the Term Out Period, and, if Borrower has requested an increase in the Aggregate Commitment prior to the Term Out Period but the Term Out Period commences prior to the effective date of such increase, such increase shall not take effect. Notwithstanding anything to the contrary contained herein, no increase of the Aggregate Commitment may require prepayment be effected under this Section 2.5(d) if (x) an Unmatured Event of all Default or portions Event of certain Advances Default shall be in existence on the effective date of such increase or would occur after giving effect thereto or (y) any representation or warranty made or deemed made by Borrower in any Loan Document or any Guarantor in any Guaranty is not (or would not be) true or correct in any material respect on the effective date of such increase (and except to the extent any such prepayment representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be subject to the provisions true and correct on and as of Section 3.4such earlier date).
Appears in 1 contract
Sources: Credit Agreement (MDC Holdings Inc)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom, Borrower may, (a) During the period from time to time, by means of a letter delivered and after the Closing Date to the Administrative Agent substantially in Termination Date, the form of Exhibit F, and acknowledged by Guarantor, Borrower shall have the right to request that the Aggregate Commitment be increased to up an amount not to exceed $330,000,000 250,000,000; provided, however, that (less i) Foreign Currency Loans shall not exceed a Dollar Equivalent at any one time outstanding equal to 20% of such increased Aggregate Commitment, (ii) the amount of any previous reductions of Borrower may exercise such right not more than once every six (6) months during such period, and (iii) the Borrower may reduce the Aggregate Commitment pursuant to Section 2.5 above2.7.1 hereof and then increase the Aggregate Commitment pursuant to the terms of this Section 2.17 not more than three (3) by (a) increasing times during such period and thereafter any reductions in the Aggregate Commitment of one or more Lenders that have agreed to shall be permanent. Any such increase and/or of the Aggregate Commitment shall be in a minimum amount of $25,000,000 (and multiples of $5,000,000 if in excess thereof).
(b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by In the event of any such Additional Lender; provided requested increase in the Aggregate Commitment, (i) each of the Lenders shall be given the opportunity to participate in the increased Aggregate Commitment (x) initially ratably in the proportions that no Additional their respective Commitments bear to the Aggregate Commitment and (y) to the extent that the requested increase of the Aggregate Commitment is not fulfilled pursuant to the preceding clause (x), ratably in the proportion that the respective Commitments of the Lenders desiring to participate in any such increase bear to the total Commitments of the Lenders desiring to so participate, and (ii) to the extent that the Lenders do not elect so to participate in such increased Aggregate Commitment to the full extent thereof after being afforded an opportunity to do so, then the Borrower shall consult with the Agent as to the number, identity and requested Commitments of additional financial institutions which the Borrower may invite to participate in the Aggregate Commitment.
(c) No Lender shall be added as at any time have any obligation to increase its Commitment pursuant to a party hereto without request by the written consent Borrower under this Section 2.17.
(d) In no event shall any Lender's Commitment, immediately after giving effect to any increase pursuant to this Section 2.17, exceed 33% of the Administrative Agent increased Aggregate Commitment.
(which shall not be unreasonably withheld). e) Any increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject 2.17 shall be effective only upon the execution and delivery to the satisfaction Borrower and the Agent of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable a commitment increase letter in substantially the form of Annex 1 Exhibit "I" hereto (a "Commitment Increase Letter"), which Commitment Increase Letter shall be delivered to Exhibit F the Agent not less than five Business Days prior to the date of any such increase and shall specify (in i) the case amount of an increase in the Commitment of an existing Lender) any other financial institution becoming a Lender party to this Agreement or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant of any Lender already party to this Section 2.23 Agreement and of (ii) the date such increase is to become effective (the "Commitment of each Lender after giving effect thereto. Borrower acknowledges thatIncrease Date").
(f) In addition, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.232.17 shall not become effective unless:
(i) on the Commitment Increase Date, a reallocation the Borrower's Long Term Debt Rating from Standard & Poor's is at least A- or better or at least A3 or better from ▇▇▇▇▇'▇;
(ii) no Default or Unmatured Default shall have occurred and be continuing on the Commitment Increase Date;
(iii) each of the Commitments representations and warranties set forth in Article V of this Agreement shall be true, correct and complete on the Commitment Increase Date as a result if made on and as of such date, except as such representations and warranties by their terms are made solely as of a non-pro-rata increase prior date; and
(iv) the Borrower shall have furnished to the Agent (with sufficient copies for each of the Lenders) a certificate of the Secretary or Assistant Secretary of the Borrower as to the taking of any corporate action necessary in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of connection with any such increase (and any other documents (including legal opinions and certificates) as the Agent may reasonably request in connection with any such prepayment shall be subject to the provisions of Section 3.4)increase.
Appears in 1 contract
Sources: Credit Agreement (Jostens Inc)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom(i) Subject to the provisions of this Section 2.5(d)(i) and Section 2.5(d)(v), Borrower may, at any time and from time to time, request ("Facility Increase Request"), by means notice to Administrative Agent, Administrative Agent's approval of a letter delivered to an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of Administrative Agent, the Aggregate Commitment may be so increased either by having financial institutions (other than Lenders then holding a Commitment hereunder) approved by Borrower and Administrative Agent ("New Lenders") become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved by Borrower and Administrative Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as a "Additional Lender"), provided that (A) unless otherwise agreed by Borrower and Administrative Agent, the Commitment of any New Lender shall not be less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000), (B) unless otherwise agreed by Borrower and Administrative Agent, the increase in the Commitment of any Lender shall be not less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000); (C) the Aggregate Commitment shall 22 not exceed $850,000,000; (D) Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the "Commitment and Acceptance") substantially in the form of Exhibit FC hereto, and acknowledged by GuarantorAdministrative Agent shall have accepted and executed the same; (E) Borrower shall have executed and delivered to Administrative Agent a Note or Notes payable to the order of each Additional Lender, request that the Aggregate Commitment each such Note to be increased to up to $330,000,000 (less in the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender's Commitment or increased Commitment (as applicable); provided that no Additional Lender (F) Borrower shall be added as a party hereto without the written consent of the have delivered to Administrative Agent an opinion of counsel and certificate of Borrower's general counsel (which shall not be unreasonably withheld). Any substantially similar to the forms of opinion attached hereto as Exhibit E, modified to apply to the increase in the Aggregate Commitment pursuant to this Section 2.23 shall, subject and each Note and Commitment and Acceptance executed and delivered in connection therewith); (G) Guarantors shall have consented in writing to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the new Commitments or increases in Commitments (as applicable) and shall have agreed that their Guaranties continue in full force and effect; and (H) Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as Administrative Agent has received and accepted the applicable increase letter shall have reasonably requested in the form of Annex 1 to Exhibit F (in the case of an connection with such new Commitment or increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lenderas applicable). The effectiveness form and substance of each the documents required under clauses (D) through (H) above shall be fully acceptable to Administrative Agent. Administrative Agent shall promptly provide written notice to Lenders following any such increase to in the Aggregate Commitment hereunder and shall be subject promptly furnish to the conditions precedent that the Administrative Agent shall have received each Lenders copies of the following documentsdocuments required under clauses (D), each dated (F), (G) and (H) above.
(ii) On the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to the provisions hereof ("Increase Date"), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and Administrative Agent, each Additional Lender shall make a payment to Administrative Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding Floating Rate Advances held by Lenders, to cause the principal amount outstanding under the Floating Rate Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). Borrower hereby irrevocably authorizes each Additional Lender to fund to Administrative Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding Floating Rate Loans held by each Lender, and each such payment shall constitute a Floating Rate Loan hereunder. Such Additional Lender shall not participate in any LIBOR Advances that are outstanding on the Increase Date, but, if Borrower shall at any time on or after such Increase Date convert or continue any LIBOR Advance outstanding on such Increase Date, Borrower shall be deemed to repay such LIBOR Advance on the date of the conversion or continuation thereof and then to reborrow as a LIBOR Advance a like amount on such date so that each Additional Lender shall make a LIBOR Loan on such date in its pro rata share of such LIBOR Advance. Each Additional Lender shall also make a Loan in the amount of its pro rata share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of an Event of Default prior to the date on which an Additional Lender is holding Loans equal to its pro rata share of all Advances hereunder, such Additional Lender shall, upon notice from Administrative Agent, on or after the date on which the Obligations are accelerated or become due following such Event of Default, pay to Administrative Agent (for the account of the other Lenders, to which Administrative Agent shall pay their pro rata shares upon receipt) a sum equal to such Additional Lender's pro rata share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Loan equal to its pro rata share thereof.
(iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5(d)(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from Lenders party to this Section 2.23Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility Letter of Credit then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility Letter of Credit in the proportion of their respective Commitments (as so increased).
(iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a reallocation commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the Commitments as a result part of a non-pro-rata Borrower or Administrative Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.
(v) Notwithstanding anything to the contrary contained herein, Borrower may not request an increase in the Aggregate Commitment during the Term Out Period, and, if Borrower has requested an increase in the Aggregate Commitment prior to the Term Out Period but the Term Out Period commences prior to the effective date of such increase, such increase shall not take effect. Notwithstanding anything to the contrary contained herein, no increase of the Aggregate Commitment may require prepayment be effected under this Section 2.5(d) if (x) an Unmatured Event of all Default or portions Event of certain Advances Default shall be in existence on the effective date of such increase or would occur after giving effect thereto or (y) any representation or warranty made or deemed made by Borrower in any Loan Document or any Guarantor in any Guaranty is not (or would not be) true or correct in any material respect on the effective date of such increase (and except to the extent any such prepayment representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be subject to the provisions true and correct on and as of Section 3.4such earlier date).
Appears in 1 contract
Sources: Credit Agreement (MDC Holdings Inc)
Increases in Aggregate Commitment. So long as no Default or Unmatured Default exists or would result therefrom(i) Subject to the provisions of Section 2.5(d)(v), Borrower may, at any time and from time to time, request ("Facility Increase Request"), by means notice to Administrative Agent, Administrative Agent's approval of a letter delivered to the Administrative Agent substantially in the form of Exhibit F, and acknowledged by Guarantor, request that the Aggregate Commitment be increased to up to $330,000,000 (less the amount of any previous reductions an increase of the Aggregate Commitment pursuant within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to Section 2.5 aboveso advise Borrower shall constitute disapproval. Upon approval of Administrative Agent, the Aggregate Commitment may be so increased either by having financial institutions (other than Banks then holding a Commitment hereunder) approved by Borrower and Administrative Agent (a"New Banks") increasing become Banks hereunder and/or by having any one or more of Banks then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved by Borrower and Administrative Agent increase the amount of their Commitments (any such Bank that elects to increase its Commitment and any New Bank being hereinafter referred to as a "Additional Bank"), provided that (A) unless otherwise agreed by Borrower and Administrative Agent, the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (which New Bank shall not be unreasonably withheldless than $25,000,000 (and, if in excess thereof, in integral multiples of $5,000,000). Any increase in , (B) unless otherwise agreed by Borrower and Administrative Agent, the Aggregate Commitment pursuant to this Section 2.23 shall, subject to the satisfaction of the conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lenderany Bank shall be not less than $10,000,000 (and, if in excess thereof, in integral multiples of $5,000,000); (C) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent not exceed $600,000,000; (D) Borrower and each Additional Bank shall have received each of executed and delivered a commitment and acceptance (the following documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a"Commitment and Acceptance") certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, substantially in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to this Section 2.23, a reallocation of the Commitments as a result of a non-pro-rata increase in the Aggregate Commitment may require prepayment of all or portions of certain Advances on the date of such increase (and any such prepayment shall be subject to the provisions of Section 3.4).the
Appears in 1 contract
Sources: Credit Agreement (MDC Holdings Inc)