Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders. (b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty. (c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 2 contracts
Sources: Credit Agreement (Laboratory Corp of America Holdings), Credit Agreement (Laboratory Corp of America Holdings)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, on one or more occasions, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an additional aggregate principal amount not to exceed the Incremental Commitment Amount at Cap from one or more Incremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide such timeIncremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount), (2) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (3) the date on which such increase is Incremental Commitments are requested to become effective (which the “Increased Amount Date”). The Borrower shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in have no obligation to offer any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and participate in any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersIncremental Commitments.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.22 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial an Authorized Officer of the Borrower, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Effective Date under Section 4.01 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request (x) Incremental Term Loan Commitments from one or more Incremental Term Lenders, which may include any existing Lender, and (y) in the event that the Total Revolving Credit Commitment Facility is terminated (other than in connection with the incurrence of Permitted Refinancing Indebtedness in respect thereof) and the Liens granted to secure obligations thereunder released, lending commitments hereunder in respect of one or more revolving facilities (“Incremental Revolving Commitments”) from one or more lenders, which may include any existing Lender; provided that (i) each Incremental Term Lender (if not already a Lender hereunder) and each lender (an “Incremental Revolving Lender” and, together with any Incremental Term Lender, an “Incremental Lender”) in connection therewithrespect of any such revolving facility (an “Incremental Revolving Facility” and, together with the L/C CommitmentOther Term Loans of any Class, an “Incremental Facility”), shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) be increased by an and (ii) the aggregate amount of Incremental Term Loan Commitments and Incremental Revolving Commitments shall not to exceed the initial Incremental Commitment Amount at such timeminus any reductions thereof pursuant to Section 2.13(c). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments, as applicable, being requested increase in the Total Revolving Credit Commitment (which shall not exceed the then-current Incremental Commitment Amount and shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 20,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is Incremental Term Loan Commitments or Incremental Revolving Commitments, as applicable, are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must (which time periods for notice may be on modified or prior to waived at the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date discretion of the Administrative Agent’s notice)). Each Class of Incremental Term Commitments established under this Section 2.22 is referred to herein as “Other Term Loans” and will rank pari passu in right of payment with the Term Loans and will benefit equally and ratably from the Liens under the Security Documents. Each Class of Other Term Loans will have terms and conditions substantially identical to those applicable to the Term Loan Commitments and the Term Loans (other than with respect to pricing, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (amortization, maturity and any Lender different drawing conditions that does not deliver such a notice within such period of 10 days shall are agreed to in the applicable Incremental Term Loan Assumption Agreement) and will be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, otherwise on the 10th day after terms and subject to the conditions reasonably satisfactory to the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed Agent. The extensions of credit pursuant to the preceding sentence to increase their each Class of Incremental Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities established under this Section 2.22 (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, both loans and letters of credit) will rank pari passu in right of payment and (except with respect to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal certain cash collateral required to be posted under certain circumstances to secure letter of credit reimbursement obligations) will benefit equally and ratably with the Term Loans from the Liens under the Security Documents with respect to the unsubscribed amount; Collateral and may have such other customary terms and provisions (including with respect to pricing, amortization of commitments, maturity and lending conditions) as may be agreed to in the applicable Incremental Revolving Facility Assumption Agreement and as are reasonably satisfactory to the Administrative Agent, provided that, notwithstanding so long as Term Loans or Other Term Loans of any Class are outstanding hereunder, the foregoing, (i) no person shall become a Incremental Revolving Credit Lender Commitments of any Class and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which loans or other credit extensions thereunder shall not be unreasonably withheld) and subject to mandatory reductions or prepayments from (iior calculated on the basis of) the L/C Commitment Net Cash Proceeds from Asset Sales or issuances of Indebtedness or from portions of Excess Cash Flow that, in any Issuing Bank shall not case, are required hereunder, prior to giving effect to any Incremental Revolving Facility, to be increased pursuant applied to this Section 2.23 without the prior written consent prepayment of such Issuing Bank. Term Loans or Other Term Loans.
(b) The Borrower and each Augmenting Incremental Lender shall execute all and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement or Incremental Revolving Facility Assumption Agreement, as the case may be, and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such Incremental Lender. Any increase in Each Incremental Term Loan Assumption Agreement shall specify the Revolving Credit Commitment may terms of the Other Term Loans to be made in an thereunder; provided that, without the prior written consent of Term Lenders holding a majority of the principal amount which is less of the outstanding Term Loans, (i) the final maturity date of any Other Term Loans shall be no earlier than the increase requested Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the interest rate spread applicable to any Other Term Loans (which, for this purpose, shall be deemed to include all upfront or similar fees or original issues discount, but excluding any underwriting, arrangement, structuring or other fees payable in connection therewith that are not generally shared with the Lenders (collectively, “Upfront Payments”), in each case, paid to the Incremental Lenders in respect of such Other Term Loans) exceeds the interest rate spread applicable to the Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Term Loans) by more than 0.25%, then the interest rate spread applicable to the Term Loans shall be increased so that it equals (after taking into account Upfront Payments made in respect of the establishment of the Term Loans) the interest rate spread applicable to the Other Term Loans. For purposes of the foregoing, any original issue discount associated with the Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the Borrower if lesser of (A) the Borrower is unable Weighted Average Life to arrange for, or chooses not to arrange for, Augmenting LendersMaturity of such Loans and (B) four.
(bi) Each Incremental Facility Agreement shall require the consent of only the Borrower, the Administrative Agent and the Incremental Lenders providing the applicable Incremental Facility, but, in each case, not the consents of any other Lenders. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Facility Agreement, this Agreement and the other Loan Documents (other than the Intercreditor Agreement) shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 2.16 and 9.08(b), the definition of “Required Lenders” and any other provisions of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Borrower and the Administrative Agent may take any and all actions as shall deem necessary or advisable in connection with the establishment of such Incremental Facility. Any such deemed amendment may be reasonably necessary to ensure that, after giving effect to any increase memorialized in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held writing by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent with the Borrower’s consent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(cd) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment Incremental Facility Agreement shall become effective under this Section 2.23 unless, 2.22 unless (i) on the date of such increaseeffectiveness and after giving effect to the making of any Other Term Loans contemplated thereby or the full utilization of the Incremental Revolving Commitments contemplated thereby, the Consolidated Senior Secured Leverage Ratio would be less than 3.00 to 1.00, (ii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.03 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other closing certificates and documentation as it shall reasonably request relating to such Incremental Facility, consistent with those delivered on the Funding Date pursuant to Section 4.02. The Administrative Agent shall have reasonably requestedpromptly notify each Lender as to the effectiveness of each Incremental Facility Agreement.
Appears in 2 contracts
Sources: Credit Agreement (SMURFIT-STONE CONTAINER Corp), Credit Agreement (Smurfit Stone Container Corp)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime (but on not more than two occasions), request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such timefrom one or more Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1.0 million and a minimum amount of $10,000,000 5.0 million or such lesser amount equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Datenotice), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount .
(each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status of each Incremental Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any and all actions as may Incremental Assumption Agreement, this Agreement shall be reasonably deemed amended to the extent (but only to the extent) necessary to ensure that, after giving effect to any increase in reflect the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion existence and terms of the Administrative Agent (i) by requiring Incremental Commitment and the outstanding Revolving Incremental Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyevidenced thereby.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.15 unless (i) on the date representations and warranties of such increase, the conditions set forth Borrower and each other Loan Party contained in paragraphs (b) this Agreement and (c) of Section 4.01 the other Loan Documents shall be satisfied and the Administrative Agent true in all material respects on such date, (ii) no Default or Event of Default shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borroweroccurred or be continuing or would result therefrom, and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) such customary an officer’s certificate executed by a Responsible Officer of the Borrower certifying, together with (unless otherwise specified in the applicable Incremental Assumption Agreement) legal opinions, board resolutions and other closing documentation as certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iv) all fees and expenses owing to the Administrative Agent or the Incremental Lenders in connection with such Incremental Commitments shall have been paid and (v) the Incremental Assumption Agreement and any other documents entered into in connection therewith shall be reasonably requestedsatisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the Total Revolving Credit Commitment (andaggregate, in connection therewith, cumulative amount of all Incremental Commitments established pursuant to this Section 2.19 after the L/C Commitment) be increased by an amount Closing Date shall not to exceed the Incremental Commitment Amount at $150,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amounti) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor more than 60 days (or such shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent, (ii) the amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Agent and each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Loans and other extensions of credit made thereunder.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such notice prior date, (iii) after giving effect to and whichthe making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in any event, must be compliance with the covenants set forth in Section 6.12 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day of the Test Period most recently ended on or prior to the Maturity Date)date of such effectiveness, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions under this Section 2.19 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Agent, to give effect to the provisions of this Section 2.19.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall offer each Revolving Credit be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of such Incremental Lender and (B) the aggregate amount of the proposed Lenders’ Commitments shall be increased amountby the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. Each Revolving For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender shallholding such Commitment, by notice to the Borrower and the Administrative Agent given not more than 10 days after Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of the Administrative Agent’s noticeeffectiveness of any Incremental Commitments, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined assigned to increase its Revolving Credit Commitment) (each Incremental Lender so declining or being holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any purchased from each Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided thatprincipal amount thereof (together with accrued and unpaid interest), notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase interests in the Revolving Loans and participations in Letters of Credit Commitment may outstanding on such date as shall be made necessary in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any increase in the Total Revolving Credit Commitment such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to this Section 2.232.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans (if any) of other Lenders so that, after giving effect thereto, all Loans that are Eurodollar Loans are held by the Revolving Credit Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Lender will make ABR Loans by transferring funds to the Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Lenders in accordance with their new Pro Rata then-current Applicable Percentages. This may be accomplished at On the discretion date of the Administrative Agent (i) by requiring effectiveness of such Incremental Commitments, the outstanding Revolving Loans Borrower will pay to be prepaid with the proceeds of a new Revolving Credit BorrowingAgent, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination for the accounts of the foregoingLenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Loans of the Borrower being prepaid. Any prepayment or assignment described The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this paragraph (b) Agreement shall be subject not apply to Section 2.16, but otherwise without premium or penaltythe transactions effected pursuant to the immediately preceding sentence.
(cf) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative The Agent shall have received a certificate notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to that effect dated such date in Section 2.19 and executed by a Financial Officer of the Borrowereffectiveness of any Incremental Commitments, and (ii) in each case advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have reasonably requestedbeen made pursuant to Section 2.19(e).
Appears in 2 contracts
Sources: Revolving Credit Agreement (OM Asset Management PLC), Revolving Credit Agreement (OM Asset Management PLC)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent may at any time or from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days time after the date of such notice and which, in any event, must be on or prior to the Maturity Closing Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount request (each Lender so agreeing being an “Increasing LenderIncremental Loan Request”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitmenti) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities additional tranches of term loans (any such bank or other entity being called an the “Augmenting LenderIncremental Term Loans”), which may include be of the same Facility as any Lenderoutstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, to extend the “Incremental Term Facilities”) and/or (ii) the establishment of one or more revolving credit commitments or one or more increases in the amount of the Revolving Credit Commitments or increase their existing (a “Revolving Commitment Increase” and, collectively with any such new revolving credit commitments, the “Incremental Revolving Credit Commitments Commitments”; the Incremental Revolving Credit Commitments, collectively with any Incremental Term Facilities, the “Incremental Facilities”), in each case incurred by a Loan Party; provided, however:
(i) each Incremental Term Facility shall be in an aggregate principal amount equal to that is not less than $10,000,000 and shall be in increments of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the unsubscribed amount; provided that, notwithstanding limit set forth in the foregoing, (inext sentence) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s each Incremental Revolving Credit Commitment shall increase pursuant to this Section 2.23 without be in an aggregate principal amount that is not less than $5,000,000 and shall be in increments of $1,000,000 in excess thereof (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the prior written consent of limit set forth in the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and next sentence);
(ii) the L/C Commitment aggregate principal amount of Incremental Revolving Credit Commitments shall not exceed $25,000,000 at any time;
(iii) the aggregate principal amount of all Incremental Facilities shall not exceed the Incremental Cap; and
(iv) the proceeds of any Issuing Bank Incremental Term Facility incurred pursuant to the Incremental Dollar Basket shall not be increased pursuant used to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase make Restricted Payments in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersconnection with any Permitted SPAC Transaction.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 2 contracts
Sources: Credit Agreement (Nebula Parent Corp.), Credit Agreement (Nebula Parent Corp.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent and each Swingline Lender (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment Amount at shall be on the same terms as the existing Commitments and in all respects shall become a part of the Commitments hereunder on such timeterms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1 million and a minimum amount of $10,000,000 25 million (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.17 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Closing Date under Section 4.1 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent and each Swingline Lender (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment Amount at shall be on the same terms as the existing Commitments and in all respects shall become a part of the Commitments hereunder on such timeterms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.17 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Closing Date under Section 4.1 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 2 contracts
Sources: Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on two occasions during the period from time the Closing Date to timethe date five Business Days prior to the Maturity Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not less than $25,000,000 per request and not more than $150,000,000 in the aggregate from one or more additional Lenders (which may include any existing Lender, each, a “New Term Loan Lender”) willing to exceed provide such incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the Incremental Commitment Amount at approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such timeNew Term Loan Lender is a Lender or an Affiliate of a Lender. Such notice shall set forth (i) the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitmentincremental Commitments being requested, and (ii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event thatOn any Increased Amount Date on which any such incremental Commitments are effective, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant subject to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than satisfaction of the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoingforegoing terms and conditions, (i) no person each New Term Loan Lender shall become make a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant Loan to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank Borrowers (which shall not be unreasonably withhelda “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment and the L/C Commitment of any Issuing Bank shall not be increased New Term Loans made pursuant to this Section 2.23 without the prior written consent of such Issuing Bankthereto. The Borrower terms and provisions of the New Term Loans and the incremental Commitments shall be identical to the existing Loans.
(b) The Borrowers and each Augmenting New Term Loan Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such New Term Loan Lender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Credit Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrowers shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the New Term Loan Lenders and all actions as may be reasonably necessary to ensure thatthe Borrowers at the time of such increase. Notwithstanding the foregoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.7 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitment hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.7 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerBRT, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall have be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all New Term Loans, when originally made, are included in each borrowing of outstanding Loans on a pro rata basis.
Appears in 2 contracts
Sources: Term Loan Agreement (Brandywine Operating Partnership, L.P.), Term Loan Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe eighteen (18) month anniversary of the Closing Date, request that the Total incremental Term Commitments and/or incremental Revolving Credit Commitment (andCommitments, as applicable, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $130,000,000 from one or more additional Term Lenders and/or additional Revolving Lenders (which may include any existing Lender) willing to provide such timeincremental Term Loans and/or incremental Revolving Commitments, as the case may be, in their own discretion; provided, that each incremental Revolving Lender and incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any incremental Lender, such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Term Commitments and/or incremental Revolving Commitments being requested, (ii) the aggregate amount of all incremental Term Commitments and incremental Revolving Commitments, when taken together with all other incremental Commitments, shall not exceed $130,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Term Commitments and/or incremental Revolving Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities requested incremental Term Commitments and/or incremental Revolving Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Term Lender and/or incremental Revolving Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its the incremental Term Commitment of such incremental Term Lender and/or incremental Revolving Credit Commitment of such incremental Revolving Lender. Each such documentation shall specify the terms of the applicable incremental Term Loans and/or its status incremental Revolving Commitments; provided, that (i) the incremental Term Loans shall rank pari passu in right of payment and of security with the Term Loans and shall have the same terms as a the Term Loans (including as to pricing, maturity and amortization) and (ii) from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Credit Lender hereunder. Any increase in Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable Commitments (including as to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) pricing and maturity). Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Term Commitments and/or incremental Revolving Commitments evidenced thereby (including adjusting the Revolving Percentages and/or the Term Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments and/or Term Commitments. The fees payable by the Borrower upon any such incremental Revolving Commitments and/or Term Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Revolving Commitments and/or Term Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the forgoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.23 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total incremental Term Commitment or incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Term Commitment and/or incremental Revolving Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that (i) all incremental Term Loans (other than Term Loans) in the form of additional Term Loans, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of incremental Revolving Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc), Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timeAgent, request that the Total Revolving Credit Commitment (andadditional Commitments, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed the Incremental Commitment Facility Amount at such time, from one or more Persons (which may include any existing Lender willing to provide the same, in its own discretion) that will become Lenders; provided that each such Person, if not already a Lender, shall be subject to the approval of the Administrative Agent and the Issuing Lenders (which approvals shall not be unreasonably withheld, delayed or conditioned). Such Each such notice shall be signed by a Financial Officer of the Borrower (provided that if such notice is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at the sole discretion of the Administrative Agent) and shall set forth (i) the amount of the requested increase in the Total Revolving Credit Commitment additional Commitments (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Facility Amount) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is additional Commitments are requested to become effective (which shall not be not less than 10 Business Days nor or more than 60 days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount ).
(each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender Person providing an additional Commitment shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersof such Person.
(bc) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment Commitments pursuant to this Section 2.235.05(a), the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Nonnon-Increasing increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Revolving Loans to Increasing Persons that are becoming Lenders and Augmenting Lenders (or increasing their Commitments), or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (bSection 5.05(c) shall be subject to Section 2.165.11, but shall otherwise be without premium or penalty.
(cd) Notwithstanding the foregoing, no increase in the Total Revolving Credit any Commitment shall become effective under this Section 2.23 unless, 5.05 unless (i) on the date of such increasethereof, the conditions set forth in paragraphs Section 7.02(b) (bwithout giving effect to the parenthetical therein and with references therein to a Borrowing being deemed to be references to such increase, and with Section 6.05(a) being deemed for this purpose to refer to the most recent financial statements delivered pursuant to Sections 8.03(a) and (c8.03(b)) of Section 4.01 shall be satisfied and no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions (with sufficient copies for each unless otherwise agreed by the Administrative Agent), board resolutions (or reaffirmation of the Lenderscontinuing effectiveness of previously adopted board resolutions applicable thereto) such customary closing documentation as and certificates consistent with those delivered on the Administrative Agent shall have reasonably requestedEffective Date under Sections 7.01(b) and 7.01(e).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment Amount at shall be on the same terms as the existing Commitments and in all respects shall become a part of the Commitments hereunder on such timeterms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.17 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Closing Date under Section 4.1 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Lead Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request that additional Revolving Commitments (collectively, “Incremental Commitments”), from one or more Revolving Lenders (in the Total sole discretion of such Lenders) and/or Eligible Assignees who will become Revolving Credit Commitment (andLenders, in connection therewithan aggregate principal amount of up to $100,000,000; provided that at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof, no Default shall have occurred and be continuing or would result therefrom; provided further that (1) each such Person, if not already a Revolving Lender hereunder, shall be subject to the approval of the Administrative Agent, the L/C CommitmentIssuers and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) be increased by an amount not to exceed the Incremental Commitment Amount at and (2) Lead Borrower may make only five such timerequests. Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 10,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment25,000,000), and (ii) the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 five Business Days nor more than 60 calendar days after the date of such notice notice, unless otherwise agreed to by the Administrative Agent).
(b) The Borrowers and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity providing an Incremental Commitment shall execute and deliver to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Commitment of such Revolving Credit Commitment and/or its status Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary (i) to reflect the existence and terms of the Incremental Commitments evidenced thereby and (ii) to increase the hard dollar amounts in the definitions of “Borrowing Base Reporting Trigger Event”, “Borrowing Base Reporting Trigger Period”, “Cash Dominion Trigger Event”, “Cash Dominion Trigger Period”, “Collateral Administration Trigger Event”, “Collateral Administration Trigger Period” and “Payment Conditions” and in Sections 2.2(h) and 7.12, in each case in proportion to the increase in the Revolving Commitments after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentagessuch Incremental Commitments. This Any such deemed amendment may be accomplished at the discretion of memorialized in writing by the Administrative Agent with Lead Borrower’s consent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each Incremental Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in any event:
(i) each Incremental Commitment (and the Total Revolving Credit Loans made thereunder) shall rank pari passu in right of payment and of security with the existing Revolving Commitments (and the Revolving Loans made thereunder); and
(ii) all material terms of each Incremental Commitment (and the Revolving Loans made thereunder) shall be identical to the existing Revolving Commitments (and the Revolving Loans made thereunder) (excluding upfront and other similar fees paid at the closing of such Incremental Commitment).
(d) No Incremental Commitments shall become effective under this Section 2.23 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Lead Borrower, ; and (ii) the Administrative Agent shall have received closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(with sufficient copies for each e) Each of the Lenders) parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, following the establishment of any Incremental Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished by the Administrative Agent, in consultation with Lead Borrower, by requiring each outstanding LIBOR Borrowing of the relevant Class to be converted into an ABR Borrowing of such customary closing documentation as Class on the date of each additional Revolving Commitment, or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with Lead Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent and each Swingline Lender (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment Amount at shall be on the same terms as the existing Commitments and in all respects shall become a part of the Commitments hereunder on such timeterms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth the (i)the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount) and), if applicable(ii)the aggregate amount of Incremental Commitments, which shall not exceed the L/C CommitmentIncremental Amount, and the (iii)the date on which such increase is Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.17 unless (i) on i)on the date of such increaseeffectiveness, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the ii)the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Closing Date under Section 4.1 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 1 contract
Sources: Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on one occasion during the period from time the Closing Date to timeDecember 31, 2007, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the aggregate amount of $50,000,000 (the “Incremental Commitment Amount at Limit”) from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Loans in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender or an Affiliate of a Lender. Such notice shall set forth (i) the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitmentincremental Commitments being requested, and (ii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities .
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such incremental Lender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and incremental Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrower shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the foregoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.7 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.7 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer financial officer of the BorrowerBRT, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall have be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all incremental Loans, when originally made, are included in each borrowing of outstanding Loans on a pro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such timeterms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility to comply with this clause (ii); and provided further, that up to $60 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicablewhich shall not exceed the Incremental Amount, the L/C Commitment, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date”), and (iv) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall offer each be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Credit Lender Lenders, the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shallBorrowers, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree ).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered an Incremental Assumption Agreement and such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Commitments evidenced thereby, except as required by the last sentence of this clause (b). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any with the Borrowers’ consent (not to be unreasonably withheld) and all actions as may be reasonably necessary furnished to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23other parties hereto. In addition, the outstanding Borrowers and each Incremental Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) by requiring this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans to be prepaid with the proceeds of a new at any time when Revolving Credit BorrowingLoans are outstanding, and (ii) an amendment to Section 5.02(b) of the Collateral Agreement, executed by causing Non-Increasing the Collateral Agents (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders to assign portions in a customary fashion following the payment in full of their outstanding all other Obligations of the Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination cash collateralization of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16outstanding Letters of Credit, but otherwise without premium or penaltyprior to any payments in respect of Bank Products (as defined in the Collateral Agreement).
(c) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerCompany, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (with sufficient copies for each of including amendments to the LendersMortgages and other Security Documents and title endorsement bringdowns) such customary closing documentation as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis, except that with respect to FILO Commitments, such actions shall have ensure FILO Loans in an amount equal to the lesser of (x) the aggregate FILO Commitments or (y) the then-current Borrowing Base applicable to the FILO Subfacility are drawn in full prior to any other Revolving Loans being borrowed at any time. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Plastics Group Inc)
Incremental Commitments. (a) The Subject to the terms and conditions set forth in this Agreement, the Borrower mayshall have the right, by from time to time, and upon at least ten (10) Business Days’ prior written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at or such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such shorter period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation notice as the Administrative Agent shall reasonably specify may agree in its sole discretion), to evidence its (I) increase the Aggregate Revolving Credit Commitment Commitments (each such increase, an “Incremental Revolver Increase”), and/or its status as a Revolving Credit Lender hereunder. Any increase (II) establish one (1) or more additional term loans and/or provide for an additional advance under the Term Loan A (each such additional term loan or additional advance, an “Incremental Term Loan”), subject, however, in any such case of the Revolving Credit Commitment may be made in an amount which is less than foregoing clauses (a)(I) and (a)(II), to satisfaction of each of the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.following conditions precedent:
(bi) Each the original principal or committed amount of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment such Incremental Revolver Increases or such Incremental Term Loan established and/or incurred pursuant to this Section 2.23, shall not exceed the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders Incremental Cap in accordance with their new Pro Rata Percentages. This may be accomplished effect at the discretion time of establishment and/or incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan;
(ii) such Incremental Revolver Increase or such Incremental Term Loan, as the case may be, shall be in a minimum amount of Ten Million Dollars ($10,000,000), and, if greater, in integral multiples of One Million Dollars ($1,000,000) in excess thereof (or such lesser amounts as the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or may agree in its sole discretion);
(iii) by any combination the establishment and incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as the foregoing. Any prepayment or assignment described in this paragraph (b) case may be, shall be subject contingent upon the receipt by the Administrative Agent of: (A) additional Revolving Commitments in a corresponding amount to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no such requested increase in the Total Aggregate Revolving Credit Commitment shall become effective under this Section 2.23 unlessCommitments, (i) on or Incremental Term Loan Commitments in a corresponding amount to the date original principal amount of such increaserequested Incremental Term Loan, as the conditions set forth case may be, in paragraphs each case of the foregoing of this clause (ba)(iii)(A), from either existing Lenders or from one (1) or more other financial institutions (each such other financial institution, an “Additional Incremental Lender”) that (I) qualifies as an Eligible Assignee, and (cII) of Section 4.01 shall is approved (such approval not to be satisfied and unreasonably withheld, conditioned or delayed) by the Administrative Agent shall have received and, with respect to any Additional Incremental Lender providing a certificate to that effect dated such date and executed by a Financial Officer Revolving Commitment, each of the BorrowerIssuing Bank and the Swingline Lender, or from a combination of existing Lenders and/or Additional Incremental Lenders; and (B) documentation from each existing Lender or Additional Incremental Lender providing an additional Revolving Commitment or an Incremental Term Loan Commitment, as the case may be, in form and substance reasonably acceptable to the Administrative Agent, evidencing its (I) agreement to provide such additional Revolving Commitment or Incremental Term Loan Commitment, as the case may be, and (iiII) acceptance of its obligations as a Lender under this Agreement;
(iv) the Administrative Agent shall have received all customary officer’s certificates, legal opinions and other documents (with sufficient copies for each including, without limitation, resolutions of the Lendersboard of directors or managers (or equivalent governing body) of each Loan Party and customary opinions of counsel to the Loan Parties, if required to be provided by the existing Lenders and Additional Incremental Lenders providing such customary closing documentation additional Revolving Commitments or such Incremental Term Loan Commitments) it may reasonably request relating to the corporate, limited liability company or other necessary authority for the effectiveness of such Incremental Revolver Increase or the establishment of such Incremental Term Loan, as the case may be, and the validity thereof, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(v) the Borrower shall have delivered to the Administrative Agent a certificate, dated as of the date of establishment and/or incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as the case may be, and duly executed by a Responsible Officer of the Borrower, certifying, on behalf of the Borrower and each other Loan Party, that, both immediately before and immediately after giving effect to the establishment and/or incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as the case may be, and the consummation of any related transactions (including, without limitation, any Acquisitions) substantially contemporaneously in connection therewith:
(A) no Default or Event of Default shall have occurred and be continuing;
(B) all representations and warranties of each Loan Party set forth in the Loan Documents (including, without limitation, the representations and warranties of each Loan Party set forth in Article IV) are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), on, and as of, such date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case, they are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), as of such earlier date; and
(C) the Loan Parties are in compliance, on a Pro Forma Basis, with all of the financial covenants set forth in Article VI (determined without giving effect to any “netting” of the cash proceeds of any Revolving Loans incurred substantially concurrently with the establishment of such Incremental Revolver Increase or of such Incremental Term Loan, as applicable, against Consolidated Funded Debt and assuming, in the case of any Incremental Revolver Increase, that the Revolving Commitments established pursuant to such Incremental Revolver Increase are fully utilized);
(vi) the Administrative Agent shall have received such amendments to the Collateral Documents as the Administrative Agent shall request in order to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the Loan Documents as in effect immediately prior to the date of establishment and incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as the case may be), after giving effect to the establishment and incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as the case may be;
(vii) if any Revolving Loans are outstanding at the time of establishment of any such Incremental Revolver Increase, then the Borrower shall, if applicable, prepay one (1) or more of the then outstanding Revolving Loans (any such prepayment to be subject to Section 2.19) in an amount necessary such that, after giving effect to such Incremental Revolver Increase, each Lender will hold its respective Pro Rata Share of outstanding Revolving Loans; provided, that, any such prepayment may be effected, in whole or in part, pursuant to a cashless rollover in accordance with Section 1.6;
(viii) the additional Revolving Commitments provided for any Incremental Revolver Increase effected pursuant to this clause (a) shall have terms identical to those for Revolving Commitments under this Agreement as of the date that is immediately prior to the date of establishment of such Incremental Revolver Increase, except for fees payable to the Lenders providing additional Revolving Commitments for such Incremental Revolver Increase;
(ix) amortization, mandatory prepayments, pricing, voting rights, fees, the final maturity date and use of proceeds applicable to any Incremental Term Loan shall be as set forth in the applicable Incremental Facility Agreement establishing such Incremental Term Loan, provided, that: (A) such Incremental Term Loan shall have a final maturity date that is coterminous with, or later than, the Latest Maturity Date; (B) the Weighted Average Life of such Incremental Term Loan shall not be less than the Weighted Average Life of any other then-outstanding Term Loan (including of the Term Loan A and any other then outstanding Incremental Term Loan); and (C) the All-In Yield applicable to such Incremental Term Loan shall not be more than one-half of one percent (0.50%) higher than the corresponding All-In Yield applicable to any other then-outstanding Term Loan (including the Term Loan A and any other then outstanding Incremental Term Loan) (it being understood and agreed that interest on any other then-outstanding Term Loan may be increased to the extent necessary to satisfy this requirement);
(x) the Borrower shall have paid any applicable upfront and/or arrangement fee(s) in connection with the establishment and/or incurrence (as applicable) of such Incremental Revolver Increase or such Incremental Term Loan, as agreed by the Borrower in writing; and
(xi) except to the extent otherwise required or permitted pursuant to the foregoing of this clause (a), all other terms and conditions of any Incremental Revolver Increase or any Incremental Term Loan, if not consistent with the terms and conditions of the Revolving Loans or the other Term Loans, as applicable, shall be reasonably requestedsatisfactory to the Administrative Agent. Notwithstanding anything to the contrary in the foregoing of this Section 2.23: (A) neither the Administrative Agent nor any Lender, nor any Affiliate of any of the foregoing (nor any of their respective successors or assigns), shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, or to provide all, or any portion, of any Incremental Term Loan, and any decision by a Lender to increase its Revolving Commitment or to provide all, or any portion, of an Incremental Term Loan shall be made in its sole and absolute discretion, independently from, and without reliance upon, any other existing Lender or Additional Incremental Lender; and (B) neither any Arranger, the Administrative Agent nor any Lender, nor any Affiliate of any of the foregoing (nor any of their respective successors or assigns), shall have any responsibility for arranging any such increased or additional Revolving Commitments for any Incremental Revolver Increase or any such Incremental Term Loan Commitments for any Incremental Term Loan, in each case of this clause (a)(B), without their prior written consent and subject to such conditions (including, without limitation, fee arrangements) as they may require in connection therewith.
(b) Notwithstanding anything to the contrary in Section 11.2, the Administrative Agent, the Loan Parties and the existing Lenders and/or Additional Incremental Lenders providing any such additional Revolving Commitments for any Incremental Revolver Increase or any such Incremental Term Loan Commitments for any Incremental Term Loan, without the further consent of any other Person, are expressly permitted to enter into an Incremental Facility Agreement to amend the Loan Documents to the extent necessary to give effect to any Incremental Revolver Increase and/or the establishment of any Incremental Term Loan pursuant to the foregoing clause (a), and to implement any technical, administrative and/or mechanical changes that are necessary or advisable to be implemented in connection therewith (including, without limitation, to ensure continuing pro rata allocations of Loans and Commitments and to implement ratable participations in Letters of Credit).
Appears in 1 contract
Sources: Credit Agreement (Cardinal Infrastructure Group Inc.)
Incremental Commitments. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request the establishment, during the Availability Period, of Incremental Commitments; provided, that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed of all the Incremental Commitment Amount at Commitments established hereunder shall not exceed $500,000,000 during the term of this Agreement. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment AmountA) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor more than 60 days after the date of (or such notice and which, in any event, must shorter period as may be on or prior agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and each Lender participating in the requested increase) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be approved by the Administrative Agent, each Issuing Bank Lender and each Swingline Lender (which shall such approval not to be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders)).
(b) Each The terms and conditions (including the applicable facility fee and interest rate spreads) of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the parties hereto hereby agrees Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided, that the Administrative Agent Company at its election may take any and all actions as may be reasonably necessary pay upfront or closing fees with respect to ensure that, after giving effect Incremental Commitments without paying such fees with respect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother Commitments.
(c) Notwithstanding The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the foregoingCompany, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided, that no increase in the Total Revolving Credit Commitment Incremental Commitments shall become effective under this Section 2.23 unless, unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the conditions representations and warranties of each Loan Party set forth in paragraphs (b) and (c) of Section 4.01 the Loan Documents that are qualified by materiality shall be satisfied true and correct and the representations and warranties that are not so qualified shall be true and correct in all material respects on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified by materiality shall be true and correct and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, as of such earlier date), (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction and (v) each guarantor (if any) shall have received a certificate to that effect dated such date and executed by a Financial Officer reaffirmed its Guarantee of the BorrowerObligations. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender not already a Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Total Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrowers shall be deemed to have received made new Revolving Borrowings (with sufficient copies the “Resulting Revolving Borrowings”) in an aggregate amount for each Borrower equal to the aggregate amount of its Existing Revolving Borrowings and of the Lenders) such customary closing documentation as Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company or such Borrower shall have reasonably requesteddeliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) each Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.16 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.05(a) and of the effectiveness of any Incremental Commitments, in each case, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.05(e).
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Loan Amount at such timefrom one or more Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of any increase in Tranche A Revolving Credit Commitments, the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in (which, unless otherwise agreed to by the Total Revolving Credit Commitment (which Administrative Agent, shall be in minimum increments integral multiples of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000 or in an amount equal to the remaining Incremental Commitment Amount), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 five Business Days nor more than 60 days after the date of such notice notice) and which, in any event, must (iii) whether such Incremental Commitments are to be on or prior to the Maturity Date), and shall offer each Tranche A Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shallCommitments, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Tranche B Revolving Credit Commitments or increase their existing Revolving Credit Commitments in Incremental Term Commitments. For the avoidance of doubt, no Lender shall have any obligation to assume an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, Incremental Commitment.
(ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Commitment of such Incremental Lender. Each such agreement shall specify the terms of the Incremental Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Maturity Date and (ii) if the initial yield on any Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate (including as margin the effect of any “LIBOR floor”) applicable to the Incremental Term Loans and (B) if the Incremental Term Loans are initially made at a discount or the lenders making the same receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) exceeds (the amount of such excess being referred to herein as the “Yield Differential”) the Applicable Percentage (plus the effect of the “LIBOR floor” contained in clause (a) of the definition of the term “Adjusted LIBO Rate”) for Eurodollar Loans hereunder, then the Applicable Percentages for the Loans hereunder shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. The other economic terms of any Incremental Term Loans (including the scheduled amortization and the mandatory and optional prepayment provisions thereof) shall be as agreed to by the Borrower and the Incremental Lenders, subject to the prior written approval of the Administrative Agent, and shall be set forth in the Incremental Assumption Agreement. Without the prior written consent of the Required Lenders, any Incremental Commitments consisting of Revolving Credit Commitments of a Class shall be identical in all respects to the then-existing Revolving Credit Commitments of such Class; provided, however, that (x) the Applicable Percentages, “LIBOR floor” and Commitment Fees with respect to all Revolving Credit Commitments may be increased concurrently with the effectiveness of any Incremental Commitment and (y) if the Incremental Lenders assuming such Revolving Credit Commitment and/or its status receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Commitment) from the Borrower or any Subsidiary for doing so, then the Borrower or such Subsidiary shall pay the same “upfront” or similar fee (in each case, as a percentage of the applicable Revolving Credit Lender hereunder. Any increase in Commitments) to the then-existing Revolving Credit Commitment may be made Lenders in an amount which is less than respect of their then-existing Revolving Credit Commitments concurrently with the increase requested by effectiveness of such Incremental Commitment. The Administrative Agent shall promptly notify each Lender as to the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment evidenced thereby and any increase to the Applicable Percentages, “LIBOR floor” or Commitment Fee required by the foregoing provisions of this Section 2.23(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, unless (i) on or before the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (cd) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) such customary legal opinions, board resolutions and other closing certificates and documentation as consistent with those delivered on the Closing Date under Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.15 shall have apply to any conversion of Eurodollar Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) The Borrower mayCompany may at any time, by written notice to the Administrative Agent and from time to time, by notice to the Administrative Agent, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Aggregate Commitments provided for under this Agreement (each such increase, an “Incremental Commitment Increase”) or enter into one or more tranches of term loans (each an “Incremental Term Loan”) so long as, after giving effect thereto, the aggregate amount of all such Incremental Commitment Increases and all such Incremental Term Loans, taken together, does not exceed $500,000,000; provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,300,000,000 less any amount of Incremental Term Loans effected pursuant to this Section 2.24, (ii) the maximum Revolving Credit Facility Sublimit shall not at any given time be in excess of $1,500,000,000 (it being understood and agreed that the Revolving Facility Sublimit shall be increased on a dollar-for-dollar basis concurrently with any Incremental Commitment Increase effected under and in accordance with this Section 2.24 (which and shall not be increased concurrently with any Incremental Term Loan effected under and in accordance with this Section 2.24), subject at all times to the foregoing $1,500,000,000 absolute limitation), (iii) any such Incremental Commitment Increase or Incremental Term Loan shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 and any whole multiple of $10,000,000 or equal to the remaining in excess thereof and (iv) each Incremental Commitment AmountIncrease will be treated as a Commitment under this Agreement; provided, further, that (A) andno Lender shall be required to provide all or any portion of such Incremental Commitment Increase or Incremental Term Loan and nothing contained in this Section 2.24 shall constitute, if or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time and (B) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase or Incremental Term Loan on the Incremental Commitment Increase Effective Date or Incremental Term Loan Effective Date, as applicable. To achieve the full amount of a requested increase or incremental term loans, as applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower Company may arrange for one or more also invite additional banks or other entities financial institutions (any such bank or other entity being called each an “Augmenting Lender”), which may include any Lender, ) to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments become Incremental Increase Lenders in respect of an aggregate amount equal Incremental Commitment Increase pursuant to a joinder agreement in form and substance satisfactory to the unsubscribed amountAdministrative Agent (each such joinder agreement, an “Incremental Joinder Agreement”) executed by the Borrowers, each Incremental Increase Lender (including any existing Lender and any Augmenting Lender) participating in such increase and the Administrative Agent or to become Incremental Term Loan Lenders in respect of an Incremental Term Loan pursuant to an amendment or restatement in form and substance satisfactory to the Administrative Agent (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Incremental Term Loan Lender (including any existing Lender and any Augmenting Lender) participating in such tranche of incremental term loans and the Administrative Agent; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit that each Incremental Increase Lender and no Revolving Credit each Incremental Term Loan Lender (including any Augmenting Lender’s Revolving Credit Commitment ) shall increase pursuant be subject to this Section 2.23 without the prior written consent approval of the Administrative Agent and the each Issuing Bank Lender (which shall such approval in each case not to be unreasonably withheldwithheld or delayed) and (ii) the L/C Commitment approval of the Company, but not the approval of any Issuing Bank shall not be other Lender. If the Aggregate Commitments are increased pursuant to in accordance with this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as Section, the Administrative Agent and the Company shall reasonably specify to evidence its Revolving Credit determine the effective date (the “Incremental Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase Increase Effective Date”) and the final allocation of such increase, and if incremental term loans are entered into in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange foraccordance with this Section, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and the Company shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such incremental term loans. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date or such incremental term loans and the Incremental Term Loan Effective Date, as applicable. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all actions as may Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be reasonably necessary deemed to ensure have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any increase additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the Total Revolving contrary set forth herein, (i) the terms of each Incremental Commitment Increase shall be identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Fee and any other pricing terms (if anyincluding upfront fees) are held shall be determined by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of Company, the Administrative Agent (i) by requiring and the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, applicable Incremental Increase Lenders and (ii) by causing Non-Increasing Lenders to assign portions the Incremental Term Loans (a) shall rank pari passu in right of their outstanding payment with the Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph Advances, (b) shall be subject not mature earlier than the Maturity Date (but may have amortization prior to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (bdate) and (c) of Section 4.01 shall be satisfied treated substantially the same as (and in any event no more favorably than) the Revolving Advances; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (2) the Applicable Rate and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Term Loan Lenders. As a condition precedent to any such increase or incremental term loans, the Company and the Dutch Borrower shall have received deliver to the Administrative Agent a certificate to that effect dated such date and executed signed by a Financial Officer senior vice president, the chief financial officer or the treasurer of the such Borrower (i) certifying that such Incremental Commitment Increase and/or Incremental Term Loan and the performance of such Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date and/or the Incremental Term Loan Effective Date, as applicable, before and after giving effect to such Incremental Commitment Increase and/or such Incremental Term Loans, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Company or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of any Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase and any Incremental Term Loans, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase or any Incremental Term Loans, the Administrative Agent shall have received and the Borrowers may, without the consent of any Lenders, effect such amendments (with sufficient copies for each including, without limitation, an Incremental Term Loan Amendment) to this Agreement and any other Loan Documents as may be necessary or appropriate, in the opinion of the Lenders) such customary closing documentation as Administrative Agent, to effect the Administrative Agent shall have reasonably requestedprovisions of this Section 2.24.
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (collectively, “ Incremental Commitments ”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $ 20 , 000 , 000 ; provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom ; provided , further , that ( 1 ) each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Revolving Commitment, the L/C CommitmentIssuer and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) be increased by an amount not to exceed and ( 2 ) the Incremental Commitment Amount at Borrower may make only 4 such timerequests . Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 $ 1 , 000 , 000 and a minimum amount of $10,000,000 $ 5 , 000 , 000 , or equal to if the remaining Incremental Commitment Amount) andCommitments are less than $ 5 , if applicable000 , 000 , the L/C remaining Incremental Commitment), and (ii) the date on which such increase is Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (iiiii) in the L/C Commitment case of any Issuing Bank Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Term Loans (“ Other Term Loans ”) . All Incremental Term Loans shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bankmade in Dollars . (b) The Borrower and each Augmenting Incremental Term Lender and/or additional Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit of such Lender hereunder. Any increase Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the Revolving Credit Commitment may terms of the Incremental Term Loans to be made in an amount which is less than thereunder . The Administrative Agent shall promptly notify each Lender as to the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) effectiveness of each Incremental Assumption Agreement . Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the 71 NAI - 1543452693v1 1543452693v6 Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph . Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed) and all actions furnished to the other parties hereto . (c) The terms of each Incremental Term Loan and, as may applicable, each additional Revolving Commitment shall be reasonably necessary satisfactory to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent and in any event : (i) by requiring shall rank pari passu in right of payment and of security with the outstanding existing Revolving Loans to be prepaid with and the proceeds of a new Revolving Credit Borrowing, existing Term Loans ; (ii) by causing Non-Increasing Lenders to assign portions in the case of their Incremental Term Loans, shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding Revolving at the time of incurrence of such Incremental Term Loans to Increasing Lenders and Augmenting Lenders or ; (iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans ; (iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders ; (v) in the case of Incremental Term Loans, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders ; (vi) in the case of Incremental Term Loans, may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any combination voluntary or mandatory prepayments of initial Term Loans hereunder, as specified in the foregoing. Any prepayment applicable Incremental Assumption Agreement ; (vii) without the prior written consent of any Loan Party or assignment described in this paragraph Credit Party, if the Effective Yield on any secured Other Term Loans (bas determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “ Yield Differential ”) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the Applicable Margin for each such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans ; and (viii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be subject identical to Section 2.16, but otherwise without premium the existing Revolving Commitments and Revolving Loans . (d) No Incremental Term Loan Commitments or penalty.
(c) Notwithstanding the foregoing, no increase in the Total additional Revolving Credit Commitment Commitments shall become effective under this Section 2.23 2 . 11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4 . 2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerBorrower ; (ii) the Total Consolidated Net Leverage Ratio on a Pro Forma Basis after giving effect to such Incremental Term Loans or Revolving Commitments, as applicable, shall be at least 0 . 25 x less than the maximum Consolidated Net Leverage Ratio permitted for such period under Section 7.12; and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.72 NAI - 1543452693v1 1543452693v6
Appears in 1 contract
Incremental Commitments. (a) The Lead Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request that additional Revolving Commitments (collectively, “Incremental Commitments”), from one or more Revolving Lenders (in the Total sole discretion of such Lenders) and/or Eligible Assignees who will become Revolving Credit Commitment (andLenders, in connection therewithan aggregate principal amount of up to $100,000,000; provided that at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof, no Default shall have occurred and be continuing or would result therefrom; provided further that (1) each such Person, if not already a Revolving Lender hereunder, shall be subject to the approval of the Administrative Agent, the L/C CommitmentIssuers and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) be increased by an amount not to exceed the Incremental Commitment Amount at and (2) Lead Borrower may make only five such timerequests. Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 10,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment25,000,000), and (ii) the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 five Business Days nor more than 60 calendar days after the date of such notice notice, unless otherwise agreed to by the Administrative Agent).
(b) The Borrowers and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity providing an Incremental Commitment shall execute and deliver to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Commitment of such Revolving Credit Commitment and/or its status Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary (i) to reflect the existence and terms of the Incremental Commitments evidenced thereby and (ii) to increase the hard dollar amounts in the definitions of “Weekly Borrowing Base Reporting Trigger Event”, “Weekly Borrowing Base Reporting Trigger Period”, “Cash Dominion Trigger Event”, “Cash Dominion Trigger Period”, “Collateral Administration Trigger Event”, “Collateral Administration Trigger Period” and “Payment Conditions” and in Sections 2.2(h) and 7.12, in each case in proportion to the increase in the Revolving Commitments after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentagessuch Incremental Commitments. This Any such deemed amendment may be accomplished at the discretion of memorialized in writing by the Administrative Agent with Lead Borrower’s consent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each Incremental Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in any event:
(i) each Incremental Commitment (and the Total Revolving Credit Loans made thereunder) shall rank pari passu in right of payment and of security with the existing Revolving Commitments (and the Revolving Loans made thereunder); and
(ii) all material terms of each Incremental Commitment (and the Revolving Loans made thereunder) shall be identical to the existing Revolving Commitments (and the Revolving Loans made thereunder) (excluding upfront and other similar fees paid at the closing of such Incremental Commitment).
(d) No Incremental Commitments shall become effective under this Section 2.23 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Lead Borrower, ; and (ii) the Administrative Agent shall have received closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(with sufficient copies for each e) Each of the Lenders) parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, following the establishment of any Incremental Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished by the Administrative Agent, in consultation with Lead Borrower, by requiring each outstanding LIBORBSBY Borrowing of the relevant Class to be converted into an ABR Borrowing of such customary closing documentation as Class on the date of each additional Revolving Commitment, or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with Lead Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the Total Revolving Credit Commitment (andaggregate, in connection therewith, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 after the L/C Commitment) be increased by an amount Effective Date shall not to exceed the Incremental Commitment Amount at $50,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amounti) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor more than 60 days (or such shorter period as may be agreed to by the Administrative Agent) after the date of on which such notice and whichis delivered to the Administrative Agent, (B) the amount of the Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any event, such Person that is not a Lender must be on or prior an Eligible Assignee that is reasonably acceptable to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given and each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Revolving Loans to be made under any Incremental Commitments (taking into account any applicable interest rate "floor" but not more than 10 days after taking into account any upfront fees) exceeds the Applicable Rate or any applicable interest rate "floor" then in effect for Revolving Loans, then the Applicable Rate or interest rate "floor" in respect of Revolving Loans (and participation fees in respect of Letters of Credit) shall automatically be increased, effective on the date of the effectiveness of such Incremental Commitments, to equal the interest rate spread or interest rate floor, or both, as the case may be, applicable to Revolving Loans under the Incremental Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent’s notice; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, either agree both immediately prior to increase its and immediately after giving effect to such Incremental Commitments and the making of Revolving Credit Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the Company shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary's certificates, officer's certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a "Lender" and a "Revolving Lender" hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or a portion reduction from time to time as set forth in the definition of the offered amount term "Commitment". For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined assigned to increase its each Incremental Revolving Credit Commitment) (Lender holding such Incremental Commitments, and each such Incremental Revolving Lender so declining or being shall be deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the purchased from each Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided thatprincipal amount thereof (together with accrued and unpaid interest), notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase interests in the Revolving Loans and participations in Letters of Credit Commitment may outstanding on such date as shall be made necessary in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Revolving Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Revolving Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any increase in the Total such Loan, at which time such Revolving Credit Commitment Loans will be repaid or refinanced with new Revolving Loans made pursuant to this Section 2.232.01 in accordance with the Applicable Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans (if any) of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Credit Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender's Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders in accordance with their new Pro Rata then-current Applicable Percentages. This may be accomplished at On the discretion date of the effectiveness of such Incremental Commitments, each Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Revolving Loans of such Borrower being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent (i) by requiring of any notice from the outstanding Revolving Loans Company referred to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders in Section 2.21 and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described effectiveness of any Incremental Commitments, in this paragraph (b) shall be subject each case advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.16, but otherwise without premium or penalty2.21(e).
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 2.22 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this the Section 2.23 2.22 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.232.22, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.162.15, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 2.22 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Laboratory Corp of America Holdings)
Incremental Commitments. Upon the satisfaction of the following conditions (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewithsuch date of satisfaction, the L/C Commitment) “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount:
(i) and, if applicable, the L/C Commitment, no Default or Event of Default shall have occurred and the date on which such increase is requested to become effective (which be continuing or shall be not less than 10 Business Days nor more than 60 days result after the date of such notice and which, in any event, must be on or prior giving effect to the Maturity Date), and Incremental Facility;
(ii) the Borrowers shall offer each Revolving Credit Lender the opportunity have paid to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more for the account of each Incremental Revolving Facility Lender (other than 10 days after Defaulting Lenders) having Incremental Revolving Facility Commitments, ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the date “Incremental Facility Exercise Fee”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.125% per annum;
(iii) the termination of the AB Receivables Financing and the payment in full or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, in each case in a manner reasonably acceptable to the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount ;
(each Lender so agreeing being an “Increasing Lender”iv) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase maintain a senior perfected security interest in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent substantially all of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested AB Receivables owned by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.Wise; and
(bv) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed written notice signed by a Financial Responsible Officer of each Borrower, notifying the BorrowerAdministrative Agent of the Borrowers’ election to exercise the Incremental Facility and certifying as to the matters set forth in this Section 2.15. On the Incremental Facility Effective Date, (i) each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Facility Loans of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility Loans, and (ii) the Administrative Agent Borrowers shall be deemed to have received repaid and reborrowed all outstanding Revolving Facility Loans as of the Incremental Facility Effective Date (with sufficient copies for each such reborrowing to consist of the LendersTypes of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, no Revolving Facility Loans, other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as in effect immediately prior to the Incremental Facility Effective Date shall be secured by any Real Property unless and until the flood diligence required by Sections 6.02 and 10.01 has been completed in a manner satisfactory to each Lender, as confirmed by written notice from each such customary closing documentation as Lender to the Administrative Agent shall have reasonably requestedand the Borrowers after the Incremental Facility Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to three (3) occasions during the period from time the Closing Date to timethe thirty (30) month anniversary of the Closing Date, request that the Total incremental Revolving Credit Commitment (and, Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $70,000,000 from one or more additional Revolving Lenders (which may include any existing Lender) willing to provide such timeincremental Revolving Commitments in their own discretion; provided, that each incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Revolving Commitments being requested, (ii) the aggregate amount of all incremental Revolving Commitments, which when taken together with all other incremental Revolving Commitments, shall not exceed $70,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Revolving Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities requested incremental Revolving Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Revolving Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its the incremental Revolving Credit Commitment and/or its status of such incremental Revolving Lender. Each such documentation shall specify the terms of the applicable incremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable Commitments (including as to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) pricing and maturity). Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Revolving Commitments evidenced thereby (including adjusting the Revolving Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Revolving Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by the Borrower upon any such incremental Revolving Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Revolving Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the forgoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.23 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Revolving Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Revolving Loans in respect of incremental Revolving Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Medical Properties Trust Inc)
Incremental Commitments. (ai) The Borrower may, may by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) request, from time to timetime (a) the extension of one or more new Term Loan Commitments or one or more increases in the existing Term Loan Commitments (any such new or increased Term Loan Commitment, request that an “Incremental Term Commitment”) and (b) the Total extension of one or more new Revolving Credit Commitment Commitments or one or more increases in the existing Revolving Credit Commitments (andany such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in connection therewith, the L/C Commitmentan aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) be increased by an amount not to exceed the $50,000,000. Each Incremental Commitment Amount at shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such timelesser amount and/or multiples as may be agreed by the Borrower and the Administrative Agent). Such Each notice delivered pursuant to this Section 3A.1 shall set forth specify (I) the amount of date (the requested increase in “Increase Effective Date”) on which the Total Revolving Credit Commitment (Borrower proposes that the proposed Incremental Commitments shall be effective, which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of in which such notice and which, in any event, must be on or prior is delivered to the Maturity DateAdministrative Agent (unless otherwise consented to by the Administrative Agent in its discretion), and shall offer each Revolving Credit Lender (II) the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage total of the proposed increased amount. Each Revolving Credit Lender shall, Incremental Commitments requested by notice to the Borrower and (III) the Administrative Agent given not more than 10 days after the date identity of the Administrative Agent’s noticebanks, either agree financial institutions and other entities to increase its Revolving Credit Commitment by whom the Borrower proposes that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the offered amount (each Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any proposed new Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such shall enter into a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks joinder or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, agreement in form and substance reasonably satisfactory to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank its counsel (which shall not be unreasonably withheld) such additional Eligible Assignees becoming Lenders and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in existing Lenders providing an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange forIncremental Commitment, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23collectively, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty“Incremental Lenders”).
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. (a) The Borrower maymay at any time, by written notice to the Administrative Agent and from time to time, by notice to the Administrative Agent, request an increase in the Aggregate Commitments (provided that there shall be no increase in the Total Revolving Credit Commitment (and, in connection therewith, the L/C CommitmentFacility Sublimit pursuant to this Section 2.24) be increased provided for under this Agreement by an amount (in the aggregate for all such requests) not to exceed the exceeding $500,000,000 (each such increase, an “Incremental Commitment Amount Increase”); provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,200,000,000, (ii) the maximum Revolving Facility Sublimit shall not at any given time be in excess of $750,000,000, (iii) any such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Incremental Commitment (which Increase shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 and any whole multiple of $10,000,000 or equal to the remaining in excess thereof and (iv) each Incremental Commitment AmountIncrease will be treated as a Commitment under this Agreement; provided, further, that (i) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which no Lender shall be not less than 10 Business Days nor more than 60 days after the date required to provide all or any portion of such notice Incremental Commitment Increase and which, in any event, must (ii) no Default or Event of Default shall have occurred and be on continuing or prior would result after giving effect to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit such Incremental Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, Increase on the 10th day after Incremental Commitment Increase Effective Date. To achieve the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate full amount less than the increase in the Total Revolving Credit Commitment of a requested by the Borrowerincrease, the Borrower may arrange for one or more also invite additional banks or other entities financial institutions to become Incremental Increase Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent (any each such bank or other entity being called joinder agreement, an “Augmenting LenderIncremental Joinder Agreement”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal ; provided that each Incremental Increase Lender shall be subject to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent approval of the Administrative Agent and the each Issuing Bank Lender (which shall such approval in each case not to be unreasonably withheldwithheld or delayed) and (ii) the L/C Commitment approval of the Borrower, but not the approval of any Issuing Bank shall not be other Lender. If the Aggregate Commitments are increased pursuant to in accordance with this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as Section, the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by and the Borrower if shall determine the effective date (the “Incremental Commitment Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each and the Lenders of the parties hereto hereby agrees that final allocation of such increase and the Administrative Agent may take any Incremental Commitment Increase Effective Date. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and all actions as may without further action be reasonably necessary deemed to ensure have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any increase additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the Total Revolving Credit Commitment pursuant to this Section 2.23contrary set forth herein, the outstanding Revolving Loans (if any) are held by terms of each Incremental Commitment Increase shall be identical to the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion Commitments made as of the Administrative Agent (i) by requiring Closing Date except that the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination Applicable Rate in respect of the foregoing. Any prepayment or assignment described in this paragraph Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (bincluding upfront fees) shall be subject determined by the Borrower and the applicable Incremental Increase Lenders. As a condition precedent to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 Borrower shall be satisfied and deliver to the Administrative Agent shall have received a certificate to that effect dated such date and executed signed by a Financial Officer senior vice president, the chief financial officer or the treasurer of the Borrower (i) certifying that such Incremental Commitment Increase and the performance of the Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date, before and after giving effect to such Incremental Commitment Increase, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase, the Administrative Agent shall have received (with sufficient copies for each and the Borrower may, without the consent of any Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Lenders) such customary closing documentation as Administrative Agent, to effect the Administrative Agent shall have reasonably requestedprovisions of this Section 2.24.
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request the establishment of Incremental Commitments, provided that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed of all the Incremental Commitment Amount at Commitments established hereunder shall not exceed US$50,000,000 during the term of this Agreement. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amounti) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor more than 60 days (or such shorter period as may be acceptable to the Administrative Agent) after the date of on which such notice is delivered to the Administrative Agent, and which(ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any eventPerson that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be on an Eligible Assignee and must be approved by the Administrative Agent and each Issuing Bank (such approval not to be unreasonably withheld or prior delayed)).
(b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Maturity Date)Commitments and the Loans and other extensions of credit made thereunder; provided that, and shall offer each Revolving Credit Lender if the opportunity Company determines to increase its Revolving Credit Commitment by its Pro Rata Percentage the interest rate or fees payable in respect of Incremental Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the proposed other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased amount. Each Revolving Credit to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrowers, each Incremental Lender shall, by notice to the Borrower providing such Incremental Commitments and the Administrative Agent given not more than 10 days Agent; provided that no Incremental Commitments shall become effective unless (i) no Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of the effectiveness thereof the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrowers shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section and (iv) the Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (but with the consent of the Company), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent’s notice, either agree to increase its Revolving Credit give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a Lender, shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposures and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate outstanding principal amount of the Revolving Loans made to each Borrower (the “Existing Revolving Borrowings” of such Borrower) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the offered difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days Borrower shall be deemed to have declined to increase its made new Revolving Credit CommitmentBorrowings (the “Resulting Revolving Borrowings” of such Borrower) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding aggregate amount of such Borrower’s Existing Revolving Borrowings and of the foregoing, (i) no person shall become Types and for the Interest Periods specified in a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant Borrowing Request delivered by such Borrower to this Section 2.23 without the prior written consent of the Administrative Agent in accordance with Section 2.03 (and the Issuing Bank such Borrower shall deliver such Borrowing Request), (which shall not be unreasonably withheldvi) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify be deemed to evidence hold its Applicable Percentage of each Resulting Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Borrowing (b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) each Borrower shall pay each Lender any increase in and all accrued but unpaid interest on its Loans comprising the Total Existing Revolving Credit Commitment Borrowings of such Borrower. The deemed payments of the Existing Revolving Borrowings made pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent clause (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) above shall be subject to compensation by the applicable Borrower pursuant to the provisions of Section 2.16, but otherwise without premium or penalty2.15 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(cf) Notwithstanding The Administrative Agent shall notify the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and Lenders promptly upon receipt by the Administrative Agent shall have received a certificate of any notice from the Company referred to that effect dated such date in Section 2.20(a) and executed by a Financial Officer of the Borrowereffectiveness of any Incremental Commitments, and (ii) in each case advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall have reasonably requestedApplicable Percentages of the Lenders after giving effect thereto and of the payments required to be made pursuant to Section 2.20(e).
Appears in 1 contract
Sources: Credit Agreement (GoPro, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such timeterms. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5.0 million and a minimum amount of $10,000,000 25.0 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”).
(b) The Borrowers and each Incremental Revolving Lender shall be not less than 10 Business Days nor more than 60 days after the date of such notice execute and which, in any event, must be on or prior deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerCompany, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (with sufficient copies for each of including amendments to the LendersMortgages and other Security Documents and title endorsement bringdowns) such customary closing documentation as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall have apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Covalence Specialty Adhesives LLC)
Incremental Commitments. (a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the Total then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and any such Lender may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Commitments or Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity DateTerm Loans under this paragraph (a), and shall offer each Revolving Credit Lender the opportunity it being understood that (w) if such Incremental Term Loan Commitment is to increase its Revolving Credit Commitment be provided by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shalla Person that is not already a Lender, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered consented to such noticePerson being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld), (x) if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) the greater of $116,000,000 and 100% of Consolidated EBITDA for the most recently ended Test Period as of such time, (ii) the aggregate principal amount of voluntary prepayments and loan buybacks pursuant to Dutch auctions and open market purchases, in the amount actually paid to retire such Indebtedness in connection with such buy-backs of (x) the Term Loans and any Incremental Equivalent Debt, (y) any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Lenders shall have agreed pursuant Commitments with respect thereto and (z) other Indebtedness secured on a pari passu basis to the preceding sentence Facilities, in each case, other than prepayments from proceeds of Long-Term Indebtedness or prepayments of Indebtedness incurred under clause (iii) below (including, without limitation, Indebtedness reclassified as having been incurred under clause (iii) below) and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to increase their Revolving Credit Commitments by an aggregate amount less than the increase terms of Section 2.17(b) below), in the Total Revolving Credit Commitment requested by case of this clause (iii), the First Lien Net Leverage Ratio on a Pro Forma Basis (assuming the full amount available thereunder is drawn and including the use of proceeds of all Indebtedness but without netting the cash proceeds thereof) does not exceed (A) 3.00 to 1.00 or (B) at the Borrower’s option, if incurred to finance a Permitted Acquisition or other similar Investment permitted by Section 6.04, the First Lien Net Leverage Ratio as in effect immediately prior to the consummation of such Permitted Acquisition or Investment (this clause (iii) the “Incremental Ratio Amount”). The Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”)financial institutions, which may include any LenderLenders, to extend Revolving Credit Commitments Commitments, provide Incremental Term Loans or increase their applicable existing Revolving Credit Commitments Term Loans in an aggregate amount equal to the unsubscribed amount; amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the it in connection with any such transaction; provided that, notwithstanding with respect to any Incremental Commitment incurred for the foregoingprimary purpose of financing a Limited Condition Transaction (“LCT-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Transaction Agreement, no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase Event of Default or Default is in existence or would result from entry into such Limited Condition Transaction Agreement, (2) as of the date of the initial borrowing pursuant to this Section 2.23 without such LCT-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the prior written consent representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Transaction Agreement and (4) as of the date of the initial borrowing pursuant to such LCT-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Issuing Bank Borrower) shall be true and correct in all material respects (which or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such LCT-Related Incremental Commitment. Nothing contained in this Section 2.17 shall not constitute, or otherwise be unreasonably withheld) and (ii) deemed to be, a commitment on the L/C Commitment part of any Issuing Bank shall not be increased pursuant Lender to this Section 2.23 without the prior written consent of such Issuing Bank. increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Borrower Loan Parties and each Augmenting Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term Loans and/or its status as a Incremental Revolving Credit Lender hereunder. Any increase Commitments; provided that:
(i) any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans (“Additional Term B Loans”) shall have the same terms (other than upfront fees) as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans,
(ii) any commitments to make Incremental Revolving Credit Commitment may Loans shall have the same terms (other than upfront fees) as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(iii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be made subject to compliance with clauses (iv) through (ix) below (without limiting the effect of such clauses in an amount which is less respect of Additional Term B Loans and Incremental Revolving Loans, as set forth therein),
(iv) Incremental Loans shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans and shall rank equal in payment priority with the existing Loans,
(v) the final maturity date of any Other Incremental Term Loans shall be no earlier than the increase requested Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, prepayments, final maturity date and ranking as to security and payment priority (which shall, subject to the other clauses of this proviso, be determined by the Borrower if and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans (except to the extent (x) such terms are conformed (or added) in for the benefit of the Initial Term B Loans pursuant to an amendment to this Agreement subject solely to the reasonable satisfaction of the Administrative Agent and the Borrower, (y) such terms are applicable solely to periods after the Latest Maturity Date of the Initial Term B Loans existing at the time of the incurrence of such incremental facility or (z) such terms reflect market terms and conditions (taken as a whole) at the time of incurrence, issuance or effectiveness (as determined by the Borrower is unable in good faith),
(vi) the Weighted Average Life to arrange forMaturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans with the longest remaining Weighted Average Life to Maturity,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(viii) the Other Incremental Term Loans, for purposes of (x) any voluntary prepayments, may provide for the ability to participate on a pro rata basis, less than pro rata basis or chooses greater than pro rata basis and (y) mandatory prepayments, may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not to arrange foron a greater than pro rata basis, Augmenting Lendersexcept in respect of Refinancing Term Loans and Refinancing Notes).
(bix) Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any assets other than the Collateral, and
(x) the interest rate margins, currency, pricing, discounts, rate floors, fees and (subject to clause (vi) above) amortization schedule applicable to Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent that (i) by requiring all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding Revolving applicable Class of Term Loans to be prepaid with the proceeds of on a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerpro rata basis, and (ii) the Administrative Agent shall have received (with sufficient copies for all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the Lenders) such customary closing documentation as applicable Class of outstanding Revolving Loans on a pro rata basis. Notwithstanding anything to the Administrative Agent contrary, this Section 2.17 shall have reasonably requestedsupersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Incremental Commitments. (a) The Borrower Company may, by written notice to the General Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, total US/UK Commitments be increased; provided that the L/C Commitment) be increased by an aggregate amount of such increase shall not to exceed the Incremental Commitment Amount at such time$150,000,000. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment US/UK Commitments (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount10,000,000) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Termination Date), and shall offer each Revolving Credit US/UK Lender the opportunity to increase its Revolving Credit US/UK Commitment by its Pro Rata Percentage of the proposed increased amount. The General Administrative Agent shall promptly deliver notice of the Company’s requested increase in the US/UK Commitments to each US/UK Lender. Each Revolving Credit US/UK Lender shall, by notice to the Borrower and the General Administrative Agent given not more than 10 days after the date of the General Administrative Agent’s notice, either agree to increase its Revolving Credit US/UK Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit US/UK Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit US/UK Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the General Administrative Agent shall have delivered such notice, the Revolving Credit US/UK Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit US/UK Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment US/UK Commitments requested by the BorrowerCompany, the Borrower Company may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit US/UK Commitments or increase their existing Revolving Credit US/UK Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person Person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit US/UK Commitment shall increase pursuant to this Section 2.23 subsection 6.18 without the prior written consent of the General Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank). The Borrower US/UK Borrowers and each Augmenting Lender shall execute all such documentation as the General Administrative Agent shall reasonably specify to evidence its Revolving Credit US/UK Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment US/UK Commitments may be made in an amount which is less than the increase requested by the Borrower Company if the Borrower Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the General Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment US/UK Commitments pursuant to this Section 2.23subsection 6.18, the outstanding Revolving US/UK Loans (if any) are held by the Revolving Credit US/UK Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the General Administrative Agent (i) by requiring the outstanding Revolving US/UK Loans to be prepaid with the proceeds of a new Revolving Credit BorrowingUS/UK Loans, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving US/UK Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16subsection 6.14, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment total US/UK Commitments shall become effective under this Section 2.23 subsection 6.18 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 subsection 8.2 shall be satisfied and the General Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer the chief financial officer of the Borrower, Company and (ii) the General Administrative Agent shall have received (with sufficient copies for each of the Increasing Lenders and Augmenting Lenders) such customary closing documentation as the General Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Reebok International LTD)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time on up to timetwo (2) occasions, request that incremental increases in the Total Maximum Revolving Credit Commitment (and, Amount in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $25,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Revolving Commitments, in their sole discretion; provided, that each additional Lender shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the requested increase in the Total Maximum Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) andAmount being requested, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which$5,000,000, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment date on which such incremental increase in the Maximum Revolving Credit Amount is to become effective (the “Increased Amount Date”). The Borrowers shall be responsible for all reasonable and documented, out of any Issuing Bank shall not be increased pocket, fees and expenses in connection with such increase, and, to the extent agreed in writing by the Borrowers pursuant to this Section 2.23 without 2.18(b), syndication expenses and fees paid to Lenders providing the prior written consent of such Issuing Bank. additional Revolving Commitments.
(b) The Borrower Borrowers and each Augmenting new Lender shall execute all and deliver to the Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any the commitment of such new increase in the Maximum Revolving Credit Commitment may Amount. Each such documentation shall specify the terms of the applicable incremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be made in an amount which is less than Revolving Commitments with the increase requested by same terms as the Borrower if the Borrower is unable Revolving Commitments (including as to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) pricing and maturity). Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any and all actions as may such documentation, this Agreement shall be reasonably amended to the extent (but only to the extent) necessary to ensure that, after giving effect to any increase in reflect the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion existence and terms of the Administrative Agent incremental Revolving Commitments evidenced thereby (i) by requiring including adjusting the outstanding Revolving Loans to be prepaid with the proceeds of a Commitment Percentages), and new Revolving Credit BorrowingNotes shall be issued and the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Maximum Revolving Credit Amount, (ii) in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by causing Non-Increasing the Borrowers upon any such incremental Revolving Commitments shall be agreed upon by the Agent, the Lenders with incremental Revolving Commitments and the Borrowers at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.18 shall constitute or be deemed to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitment Percentage hereunder.
(c) Notwithstanding the foregoing, no increase in the Total incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, 2.18 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 3.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer duly authorized officer of the BorrowerBorrowers, and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Agent, consistent with those delivered on the Closing Date under Section 3.1 and such additional customary documents and filings as the Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with sufficient copies for each the covenants set forth in Section 7 after giving effect to such incremental Revolving Commitments, the Loans to be made thereunder and the application of the Lendersproceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Credit Advances in respect of incremental Revolving Commitments, when originally made, are included in such customary closing documentation as aggregate Revolving Credit Advance of outstanding Revolving Credit Advances on a pro rata basis. The Borrowers agree that Section 2.18 shall apply to any conversion of any Loan bearing interest at the Administrative Agent shall have Applicable LIBOR Rate to a Loan bearing interest at the Applicable Base Rate reasonably requestedrequired by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount for all Incremental Commitments not to exceed $50,000,000; provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom and the Borrower shall be in Pro Forma Compliance with Section 7.12(a); provided, further, that each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Commitment, the L/C Commitment) Issuer and the Swingline Lender (which approvals shall not be increased by an amount not to exceed the Incremental Commitment Amount at such timeunreasonably withheld or delayed). Such notice shall set forth (i) the amount of the additional Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount5,000,000) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is additional Commitments are requested to become effective (which shall not be not less than 10 ten Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount ).
(each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting additional Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status of such Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The Incremental Commitments shall rank pari passu in right of payment and of security with the foregoing, no increase in existing Loan Document Obligations and all terms of any additional Commitments and Credit Extensions under such additional Commitments shall be identical to the Total Revolving existing Commitments and Credit Commitment Extensions.
(d) No additional Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, ; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the additional Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that following the establishment of any additional Commitments, the outstanding Revolving Loans are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Borrowing of the relevant Class to be converted into an ABR Borrowing of such customary closing documentation as Class on the date of each additional Commitment, or by requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Liberty Tax, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the Total Revolving Credit Commitment (option of the Borrowers in Dollars and/or Euro and, in connection therewiththe case of any Incremental Revolving Facility Commitments, the L/C Commitment) be increased by any Alternate Currency in an amount not to exceed the Incremental Commitment Amount available at the time such timeIncremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such person pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be (x) in minimum increments of $5,000,000 and a minimum amount of $10,000,000 25,000,000 and (y) minimum increments of €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining Incremental Commitment Amount), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date)effective, and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which together with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the Revolving Facility Loans (“Other Incremental Revolving Loans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall offer each Revolving Credit Lender the opportunity execute and deliver to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s noticean Incremental Assumption Agreement and, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or its status Incremental Revolving Facility Commitments; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall have (A) substantially the same terms as the Initial Term Loans or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Credit Lender hereunder. Any increase Facility, (iii) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (A) substantially the same terms as the Initial Revolving Facility or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent, (v) in the event that the All-in-Yield for such Incremental Term Loan Commitments is greater than the All-in-Yield for the existing Initial Term B Loans by more than 50 basis points, then the Applicable Margin for the existing Term Loans, shall be increased to the extent necessary so that the All-in-Yield for such Incremental Term Loan Commitments is no more than 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the case of any Incremental Revolving Credit Facility Commitments in effect prior to the one year anniversary of the Closing Date, in the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment may is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Applicable Margin for the existing Revolving Facility shall be made in an amount which increased so that the All-in-Yield for the existing Revolving Facility is no more than 50 basis points less than the increase All-in-Yield for the Incremental Revolving Facility Commitments, (vii) at the time of and immediately after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that in the case of a Limited Condition Acquisition, the only representations and warranties that will be required to be true and correct in all material respects will be the Specified Representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.22 unless (i) subject to the limitations in Section 1.07(a) in the case of any Borrowing in connection with a Limited Condition Acquisition, on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) except as otherwise specified in the applicable amendment, the Administrative Agent shall have received (with sufficient copies for each of the Lenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) legal opinions with respect to customary matters, board resolutions, Notes and other customary closing certificates reasonably requested by the Borrower if Administrative Agent and consistent with those delivered on the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersClosing Date under subsection 4.02.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent that (i) by requiring the outstanding Revolving all Incremental Term Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (iiother than Other Incremental Term Loans) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unlessform of additional Initial Term Loans, (i) when originally made, are included in each Borrowing of outstanding Initial Term Loans on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerpro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Term Loans and Revolving Facility Loans and shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedsame Guarantees.
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Incremental Commitments. (a) The Borrower mayBorrowers shall have the right, in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Effective Date, and prior to the Final Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by written notice the Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at Agreement in respect thereof as provided in clause (b) of this Section 2.15, such time. Such notice Lender shall set forth the amount not be obligated to fund any Revolving Loans in excess of the requested increase its Revolving Loan Commitment as in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal effect prior to the remaining giving effect to such Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and 2.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the L/C Commitment consent of any Issuing Bank other Lender, (iii) each Eligible Transferee who will become a Lender shall not be increased required to be reasonably satisfactory to the Administrative Agent, (iv) each provision of Incremental Commitments on a given date pursuant to this Section 2.23 without the prior written consent 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation lesser amount as may be agreed by the Administrative Agent in its sole discretion), (v) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.15, shall reasonably specify not exceed the Maximum Incremental Commitment Amount and (vi) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to evidence its Revolving an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Commitment and/or its status as Documents to the other Obligations on a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenderspari passu basis.
(b) Each At the time of the parties hereto hereby agrees that provision of Incremental Commitments pursuant to this Section 2.15, US Company, each US Borrower, UK Company, each UK Borrower, Canadian Company, each Canadian Borrower, the Administrative Agent may take and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (z) all actions as other conditions precedent that may be reasonably set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Schedule 1.01(a) shall be deemed modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Revolving Notes will be issued, at the expense of the Borrowers, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders) (even though as a result thereof such new Loans (to the extent required to be maintained as LIBOR Loans or EURIBOR Loans) may have a shorter Interest Period than the then outstanding Borrowings of such Revolving Loans), in each case to the extent necessary to ensure that, so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Credit Loan Commitment pursuant to this Section 2.232.15) and with the Borrowers being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for the prepayment or funding of, as applicable, the outstanding various Revolving Loans during an existing Interest Period (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished rather than at the discretion end of the Administrative Agent (i) by requiring respective Interest Period in the outstanding Revolving Loans to be prepaid with the proceeds case of a new Revolving Credit Borrowingprepayment or the beginning of the respective Interest Period in the case of a funding, (iibased upon rates then applicable thereto) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) in connection with any such prepayment and/or funding. All determinations by any combination of Lender pursuant to the foregoing. Any prepayment or assignment described in this paragraph (b) shall preceding sentence shall, absent manifest error, be subject to Section 2.16, but otherwise without premium or penaltyfinal and conclusive and binding on all parties hereto.
(cd) Notwithstanding The terms and provisions of the foregoing, no increase in Revolving Loans made pursuant to the Total Incremental Commitments shall be identical to the Revolving Credit Commitment Loans made pursuant to the existing Revolving Loan Commitment; provided that the yield applicable to the Revolving Loans made pursuant to the Incremental Commitments (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans) shall become effective under not be greater than the applicable yield payable pursuant to the terms of this Section 2.23 unless, (i) on Agreement as amended through the date of such increasecalculation with respect to Revolving Loans made pursuant to the existing Revolving Loan Commitment (including any upfront fees or original issue discount payable to the initial Lenders hereunder) unless the Applicable Margin with respect to the Revolving Loans made pursuant to the existing Revolving Loan Commitment is increased so as to cause the then applicable yield under this Agreement on the Revolving Loans made pursuant to the existing Revolving Loan Commitment to equal the yield then applicable to the Revolving Loans made pursuant to the Incremental Commitment (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans).
(e) In the event the Borrowers from time to time obtain any Incremental Commitments under this Section 2.15, all availability levels hereunder denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the conditions set forth definitions of “Applicable Margin”, “Minimum Availability Amount” and “Payment Conditions” and in paragraphs (bSection 10.04(a)) and (c) of Section 4.01 shall be satisfied and increased in proportion to the Administrative Agent ratio of such Incremental Commitments to the Total Revolving Loan Commitment as in effect immediately prior to the Borrowers obtaining such Incremental Commitments and, for the avoidance of doubt, all such levels denominated in percentages shall have received a certificate be calculated based on the Total Revolving Loan Commitment after giving effect to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedIncremental Commitments.
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Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that an increase in the Total Revolving Credit Commitment aggregate amount of the Commitments (andeach such increase, an “Incremental Commitment”), as applicable, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed the $200,000,000, from one or more Incremental Commitment Amount at such timeLenders, all of which must be permitted to become assignees of Commitments or Loans under Section 9.04. Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 (or such lesser amount as the Administrative Agent may agree) and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or such lesser amount equal to the remaining Incremental Commitment Amountunused amount) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is Incremental Commitments are requested to become effective effective.
(b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior entitled to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase participate in its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed sole discretion) and, subject to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall such consent not to be unreasonably delayed or withheld) ), additional banks, financial institutions and (ii) other institutional lenders who will become Incremental Lenders in connection therewith, in each case, solely to the L/C Commitment extent such consent, if any, would be required under Section 9.04 for an assignment of any Issuing Bank shall not be increased pursuant Loans or Commitments, as applicable, to this Section 2.23 without the prior written consent of such Issuing Bankadditional banks, financial institutions and other institutional lenders. The Borrower and each Augmenting Incremental Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status of such Person. The terms and provisions of the Incremental Commitments shall be identical to those of the Commitments. The Incremental Commitments shall rank pari passu in right of payment and security with the Commitments. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby, and the Administrative Agent and the Borrower may take any and all actions as may be reasonably necessary revise this Agreement to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyevidence such amendments.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.18 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.02 shall be satisfied and the Administrative Agent shall have received satisfied, a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other closing documentation as certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 and (iii) all fees and expenses owing in respect of such Incremental Commitment to the Administrative Agent and the Lenders shall have reasonably requestedbeen paid in full.
(d) On the date of effectiveness of any Incremental Commitments, the Borrower shall
(A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders, the Incremental Lenders and the existing Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans are held ratably by the Lenders in accordance with the respective Commitments of such Lenders (after giving effect to such Incremental Commitments) and (C) pay to the Lenders the amounts, if any, payable under Section 2.13 as a result of any such prepayment.
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Incremental Commitments. (ai) The Borrower may, by with the prior written notice to consent of the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed $20,000,000 from one or more of the Incremental Commitment Amount at existing Lenders in such time▇▇▇▇▇▇’s sole discretion. Such notice shall set forth (A) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment and (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment AmountB) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 ten (10) Business Days nor more than 60 thirty (30) days after the date of such notice and whichnotice, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and case unless the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”otherwise agrees). In the event that, on the 10th day after No Lender will be required or otherwise obligated to provide any Incremental Commitments.
(ii) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent shall have delivered an Incremental Term Loan Amendment and such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of documentation as the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent Incremental Lenders shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such Incremental Lender. Any increase in Each Incremental Term Loan Amendment (A) shall specify the Revolving Credit Commitment may terms of the Incremental Term Loans to be made thereunder, (B) shall be made pursuant to the Loan Documents and (C) shall be on terms consistent with the terms applicable to the Term Loans unless, for purposes of this clause (C), the Requisite Lenders, each in an amount which is less than their sole discretion, shall have provided their written consent to such other terms. Neither the increase requested by Incremental Commitments nor the Borrower if Incremental Term Loan Amendment shall be effective unless the Borrower is unable Administrative Agent and the Requisite Lenders, each in its sole discretion, shall have provided its written consent to arrange for, or chooses not to arrange for, Augmenting Lenderssuch Incremental Commitments and Incremental Term Loan Amendment.
(biii) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment. Each of the parties hereto hereby agrees that that, the Administrative Agent may take Incremental Term Loan Amendment may, without the consent of any Lenders (other than the Incremental Lenders and all actions the Requisite Lenders), effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary to ensure thator appropriate, after giving effect to any increase in the Total Revolving Credit Commitment pursuant opinion of the Requisite Lenders, to effect the provisions of this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty2.1(b).
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $20,000,000; provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom; provided, further, that (1) each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Revolving Commitment, the L/C CommitmentIssuer and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) be increased by an amount not to exceed and (2) the Incremental Commitment Amount at Borrower may make only 4 such timerequests. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000, or equal to if the remaining Incremental Commitment Amount) and, if applicableCommitments are less than $5,000,000, the L/C remaining Incremental Commitment), and (ii) the date on which such increase is Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice) and (iii) in the case of Incremental Term Loan Commitments, either agree whether such Incremental Term Loan Commitments are to increase its Revolving Credit Commitment by all be Term Loan Commitments or a portion of commitments to make term loans with terms different from the offered amount Term Loans (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing LenderOther Term Loans”). In the event that, on the 10th day after the Administrative Agent All Incremental Term Loans shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase be made in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities Dollars.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Term Lender and/or additional Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such Lender. Any increase Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the Revolving Credit Commitment may terms of the Incremental Term Loans to be made in an amount which is less than thereunder. The Administrative Agent shall promptly notify each Lender as to the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld, conditioned or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the existing Revolving Loans and the existing Term Loans;
(ii) in the Total case of Incremental Term Loans, shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders;
(v) in the case of Incremental Term Loans, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(vi) in the case of Incremental Term Loans, may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of initial Term Loans hereunder, as specified in the applicable Incremental Assumption Agreement;
(vii) without the prior written consent of any Loan Party or Credit Party, if the Effective Yield on any secured Other Term Loans (as determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the Applicable Margin for each such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans; and
(viii) all material terms of any additional Revolving Credit Commitment Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Term Loan Commitments or additional Revolving Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; (ii) the Total Leverage Ratio on a Pro Forma Basis after giving effect to such Incremental Term Loans or Revolving Commitments, as applicable, shall be at least 0.25x less than the maximum Consolidated Net Leverage Ratio permitted for such period under Section 7.12; and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) In connection with any such customary closing documentation additional Revolving Commitments, each existing Revolving Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the existing Revolving Commitments, multiplied by (ii) the amount of such Incremental Commitment. In connection with any such Incremental Term Loan Commitments, each existing Term Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Term Loan Commitments in an amount equal to (i) a fraction, the numerator of which is the Outstanding Amount of such Term Lender’s Term Loans, and the denominator of which it the Outstanding Amount of all Term Loans of all Term Lenders, multiplied by (ii) the amount of such Incremental Commitment.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and that following the establishment of any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Class on the date of each Incremental Term Loan or additional Revolving Commitment, or by allocating a portion of each Incremental Term Loan to each outstanding LIBOR Term Borrowing of the same Class on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Credit Agreement that would prohibit such an initial Interest Period), or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs). In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.6(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the Total Revolving Credit Commitment (option of the Borrowers in Dollars and/or Euro and, in connection therewiththe case of any Incremental Revolving Facility Commitments, the L/C Commitment) be increased by any Alternate Currency in an amount not to exceed the Incremental Commitment Amount available at the time such timeIncremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion, provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent unless such Incremental Revolving Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such person pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be (x) in minimum increments of $5,000,000 and a minimum amount of $10,000,000 25,000,000 and (y) minimum increments of €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining Incremental Commitment Amount), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date)effective, and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which together with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the Revolving Facility Loans (“Other Incremental Revolving Loans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall offer each Revolving Credit Lender the opportunity execute and deliver to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s noticean Incremental Assumption Agreement and, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or its status Incremental Revolving Facility Commitments; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall have (A) substantially the same terms as the Initial Term Loans or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Credit Lender hereunder. Any increase Facility, (iii) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (A) substantially the same terms as the Initial Revolving Facility or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent, (v) in the event that the All-in-Yield for such Incremental Term Loan Commitments is greater than the All-in-Yield for the existing Initial Term B Loans by more than 50 basis points, then the Applicable Margin for the existing Term Loans, shall be increased to the extent necessary so that the All-in-Yield for such Incremental Term Loan Commitments is no more than 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the case of any Incremental Revolving Credit Facility Commitments in effect prior to the one year anniversary of the Closing Date, in the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment may is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Applicable Margin for the existing Revolving Facility shall be made in an amount which increased so that the All- in-Yield for the existing Revolving Facility is no more than 50 basis points less than the increase All-in-Yield for the Incremental Revolving Facility Commitments, (vii) at the time of and immediately after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) except as otherwise specified in the applicable amendment, the Administrative Agent shall have received (with sufficient copies for each of the Lenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) legal opinions with respect to customary matters, board resolutions, Notes and other customary closing certificates reasonably requested by the Borrower if Administrative Agent and consistent with those delivered on the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersClosing Date under subsection 4.02.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent that (i) by requiring the outstanding Revolving all Incremental Term Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (iiother than Other Incremental Term Loans) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unlessform of additional Initial Term Loans, (i) when originally made, are included in each Borrowing of outstanding Initial Term Loans on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerpro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Term Loans and Revolving Facility Loans and shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedsame Guarantees.
Appears in 1 contract
Incremental Commitments. (a) The Borrower mayshall have the right, at any time and from time to time after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders increase their respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by written adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender” and, together with each Increasing Lender, the “Incremental Lenders”), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately after giving effect to any Incremental Commitment, (y) the aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and (z) the aggregate of all Incremental Commitments effected shall not exceed $150,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof) the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (E) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent from time ten (10) Business Days before making a request to time, request any Person that the Total Revolving Credit Commitment (and, is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in connection therewith, the L/C Commitment) be increased by an amount not to exceed the such requested Incremental Commitment Amount at such time. Such if it provides written notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment its election to participate within ten (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount10) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s receipt of such notice, either agree to increase its Revolving Credit Commitment by all or a portion . Such notice from the Borrower shall specify the requested amount of the offered amount (each Incremental Commitment. No Lender so agreeing being shall have any obligation to become an “Increasing Lender”) or decline . Any fees paid by the Borrower for an Incremental Commitment to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing an Incremental Lender”). In the event that, on the 10th day after the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, shall have delivered be for their own account and shall be in an amount, if any, mutually agreed upon by each such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.21 shall be construed to obligate the Borrower may arrange to pay any fee for one an Incremental Commitment to an Incremental Lender, the Administrative Agent or more banks or either Arranger.
(b) Revolving Commitment Increases, if any, shall have the same terms (other entities than upfront fees) as the existing Commitments and be effected as set forth in Section 2.21(f). Term Loan Commitments, if any, shall have terms and conditions acceptable to the Administrative Agent, the Incremental Lenders making such Term Loan Commitments and the Borrower (any such bank or other entity being called terms and conditions to be set forth in an “Augmenting Lender”amendment to this Agreement effective as of the Incremental Commitment Effective Date), which may include any Lender, provided that the Term Loans made pursuant to extend Revolving Credit such Term Loan Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Credit Loans
(c) Each Additional Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of must be approved in writing by the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing BankLenders. The Borrower and each Augmenting Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent shall and the Borrower may reasonably specify require including without limitation the documentation for the amendment referred to in Section 2.21(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence its Revolving Credit the Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase adjustments referred to in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersSection 2.21(f).
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) If Incremental Commitments are held by the Revolving Credit Lenders provided in accordance with their new Pro Rata Percentages. This may be accomplished at this Section 2.21, the discretion of Borrower (in consultation with the Administrative Agent Agent) and each Incremental Lender shall agree upon the effective date (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) “Incremental Commitment Effective Date,” which shall be subject a Business Day not less than thirty (30) days prior to Section 2.16the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, but otherwise without premium no Lender other than an Incremental Lender must execute any joinder or penaltyamendment in connection with an Incremental Commitment.
(ce) Notwithstanding anything set forth in this Section 2.21 to the foregoingcontrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, (ibe effective) on the date of such increase, unless the conditions set forth in paragraphs Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(bi) and (c) of Section 4.01 shall be satisfied and the The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to that effect dated and attaching the resolutions adopted by the board of directors (or similar governing body) of such date and executed by party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality or reference to Material Adverse Effect or Material Adverse Change, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (iiz) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent shall have received (with sufficient copies for each of and the Lenders) , together with such customary closing documentation other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such ▇▇▇▇▇▇’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The deemed payments made pursuant to clause (i) above in respect of each SOFR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.19 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent during the period from time the Restatement Date to timethe Maturity Date, request incremental Commitments in minimal incremental amounts of at least $5,000,000,provided that Aggregate Commitments shall not at any time exceed $450,000,000, which incremental Commitments may come from one or more additional Lenders (which may include any existing Lender) willing to provide such incremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the Total Revolving Credit Commitment approval of Administrative Agent (andwhich approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such timeAffiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the then current amount of Aggregate Commitments, which after giving effect to all incremental Commitments, shall not exceed $450,000,000 in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitmentaggregate, and (iii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lenderassistance of Borrowers, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal arrange a syndicate of Lenders willing to hold the unsubscribed amount; provided that, notwithstanding the foregoing, requested incremental Commitments.
(ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower Borrowers and each Augmenting incremental Lender shall execute all and deliver to Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status of such incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as a Revolving Credit Lender hereunderthe Commitments (including as to pricing and maturity). Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any and all actions as may such documentation, this Agreement shall be reasonably amended to the extent (but only to the extent) necessary to ensure thatreflect the existence and terms of the incremental Commitments evidenced thereby, after giving and new Notes shall be issued and Borrowers shall make such borrowings and repayments as shall be necessary to effect to the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by Borrowers upon any increase such incremental Commitments shall be agreed upon by Administrative Agent, the Lenders with incremental Commitments and Borrowers at the time of such increase. Nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.20 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.20 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerBorrowers, and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation consistent with those delivered on the Original Closing Date under Section 5.01 and such additional customary documents and filings as Administrative Agent may reasonably require, including amendments to Mortgages and date downs to, and incremental increases in the amounts of coverage under, the various Title Policies, and (iii) Borrowers shall be in pro forma compliance with sufficient copies the covenants set forth in Section 8.07 and the Loan to Value Ratio for each all of the LendersCollateral Properties shall be no more than (x) sixty percent (60%) prior to the Extension Period, and (y) fifty-five percent (55%) during the Extension Period, in each case after giving effect to such customary closing documentation incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as the if made and applied on such date, and Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, showing such calculations in reasonable detail.
(d) Each of the parties hereto hereby agrees that Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Loans in respect of incremental Commitments, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. Borrowers agree that Section 4.05 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
(e) Without limitation of the foregoing, Borrowers may add additional Collateral Property in accordance with the requirements of Section 2.21 (including the consent of Required Lenders)and obtain an incremental Commitment to finance such new Collateral Property.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Incremental Commitments. (a) The Borrower Representative may, by written notice to the Administrative Agent on behalf of any Borrower, at any time or from time to timetime after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request that (i) one or more new commitments which may be of the Total same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”) or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the “Incremental Revolving Credit Commitment (Commitments”, and, in connection therewithcollectively with any Incremental Term Commitments, the L/C Commitment) be increased by “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $178,800,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Commitment Amount at such time. Such notice shall set forth (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the requested increase in the Total Revolving Credit Commitment “Fixed Incremental Amount”) plus (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment AmountB) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered an unlimited amount (each Lender so agreeing being an the “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “NonIncremental Incurrence-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting LenderBased Amount”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become so long as on a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, Pro Forma Basis after giving effect to the incurrence of any increase such Incremental Loans (assuming the full amount of any such Indebtedness in the Total form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Incremental Revolving Credit Commitment pursuant to this Section 2.23not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion Total Net Leverage Ratio does not exceed 4.50:1.00 as of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination last day of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.most recently completed Test
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrower mayshall have the right, at any time and from time to time after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders increase their respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by written adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender” and, together with each Increasing Lender, the “Incremental Lenders”), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately after giving effect to any Incremental Commitment, (y) the aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and (z) the aggregate of all Incremental Commitments effected shall not exceed $150,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof) the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (E) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent from time ten (10) Business Days before making a request to time, request any Person that the Total Revolving Credit Commitment (and, is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in connection therewith, the L/C Commitment) be increased by an amount not to exceed the such requested Incremental Commitment Amount at such time. Such if it provides written notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment its election to participate within ten (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount10) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s receipt of such notice, either agree to increase its Revolving Credit Commitment by all or a portion . Such notice from the Borrower shall specify the requested amount of the offered amount (each Incremental Commitment. No Lender so agreeing being shall have any obligation to become an “Increasing Lender”) or decline . Any fees paid by the Borrower for an Incremental Commitment to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing an Incremental Lender”). In the event that, on the 10th day after the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, 12581222v10 24740.00017 shall have delivered be for their own account and shall be in an amount, if any, mutually agreed upon by each such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.21 shall be construed to obligate the Borrower may arrange to pay any fee for one an Incremental Commitment to an Incremental Lender, the Administrative Agent or more banks or either Arranger.
(b) Revolving Commitment Increases, if any, shall have the same terms (other entities than upfront fees) as the existing Commitments and be effected as set forth in Section 2.21(f). Term Loan Commitments, if any, shall have terms and conditions acceptable to the Administrative Agent, the Incremental Lenders making such Term Loan Commitments and the Borrower (any such bank or other entity being called terms and conditions to be set forth in an “Augmenting Lender”amendment to this Agreement effective as of the Incremental Commitment Effective Date), which may include any Lender, provided that the Term Loans made pursuant to extend Revolving Credit such Term Loan Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Credit Loans
(c) Each Additional Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of must be approved in writing by the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing BankLenders. The Borrower and each Augmenting Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent shall and the Borrower may reasonably specify require including without limitation the documentation for the amendment referred to in Section 2.21(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence its Revolving Credit the Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase adjustments referred to in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersSection 2.21(f).
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) If Incremental Commitments are held by the Revolving Credit Lenders provided in accordance with their new Pro Rata Percentages. This may be accomplished at this Section 2.21, the discretion of Borrower (in consultation with the Administrative Agent Agent) and each Incremental Lender shall agree upon the effective date (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) “Incremental Commitment Effective Date,” which shall be subject a Business Day not less than thirty (30) days prior to Section 2.16the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, but otherwise without premium no Lender other than an Incremental Lender must execute any joinder or penaltyamendment in connection with an Incremental Commitment.
(ce) Notwithstanding anything set forth in this Section 2.21 to the foregoingcontrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, (ibe effective) on the date of such increase, unless the conditions set forth in paragraphs Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(bi) and (c) of Section 4.01 shall be satisfied and the The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c); 12581222v10 24740.00017
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to that effect dated and attaching the resolutions adopted by the board of directors (or similar governing body) of such date and executed by party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality or reference to Material Adverse Effect or Material Adverse Change, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (iiz) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent shall have received (with sufficient copies for each of and the Lenders) , together with such customary closing documentation other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage 12581222v10 24740.00017
Appears in 1 contract
Incremental Commitments. (a) The Borrower maymay from time to time after the Closing Date, by upon at least sixty (60) days’ prior written notice to the Administrative Agent from in each case, at any time prior to timethe Termination Date, request that increase the Total Revolving Credit Commitment aggregate Commitments (andeach such increase, an “Incremental Increase”) at the option of the Borrower by an agreement in connection therewithwriting entered into by the Borrower, the L/C Commitmentother Credit Parties, the Administrative Agent and each Person (including any existing Lender) be increased by that agrees to provide a portion of such Incremental Increase (each an amount not to exceed “Incremental Amendment”); provided that.
(a) the Incremental Commitment Amount at such time. Such notice shall set forth the aggregate principal amount of the requested increase in the Total Revolving Credit Commitment all Incremental Increases shall not exceed $100,000,000;
(which b) each Incremental Increase shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 20,000,000 and in integral multiples of $5,000,000 in excess thereof (or equal such lesser amounts as the Administrative Agent may agree);
(c) no existing Lender shall be under any obligation to the remaining provide any portion of any Incremental Commitment AmountIncrease and any such decision whether to provide any portion of any Incremental Increase shall be in such Lender’s sole and absolute discretion;
(d) and, if applicable, the L/C Commitmentno Default or Event of Default shall have occurred and be continuing, and no Default or Event of Default would exist after giving effect to any Incremental Increase (and treating any Incremental Increase as fully drawn for such purpose), both on the date on which such increase Incremental Increase is requested to become effective and on the date on which such Incremental Increase becomes effective;
(which e) each Person providing any Incremental Increase shall be not less than 10 Business Days nor more than 60 days after the date of such notice a Lender or an institution that qualifies as an Eligible Assignee and which, in any event, must be on or prior is acceptable to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange forIssuer, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received (A) additional commitments in respect of such requested Incremental Increase (each an “Incremental Commitment”) from such Persons and (B) documentation from each Person providing an Incremental Increase evidencing its Incremental Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(f) the Administrative Agent shall have received:
(i) a certificate of each Credit Party dated as of the effective date of such Incremental Increase, signed by a Responsible Officer of such Credit Party acceptable to that the Administrative Agent and (A) certifying and attaching such Credit Party’s articles of incorporation or certificate of formation (or equivalent), bylaws or operating agreement (or equivalent), and resolutions adopted by the board of directors or equivalent governing body of such Credit Party approving such Incremental Facility, and certifying as to the incumbency of the Responsible Officers of such Credit Party authorized to act on its behalf in connection with such Incremental Increase, and (B) in the case of the Borrower, certifying that, both immediately before and after giving effect dated to such Incremental Increase, (x) the representations and warranties contained in Article IV and in the other Credit Documents are true and correct on and as of the date of such Incremental Increase, with the same effect as if made on and as of such date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), and (y) no Default or Event of Default exists;
(ii) a certificate executed by a Financial Officer of the Borrower, Borrower or the Parent certifying and demonstrating that after giving effect to the incurrence of such Incremental Increase (iiand treating such Incremental Increase as fully drawn for such purpose) the Administrative Agent shall Borrower is in compliance with the financial covenants contained in Article VI, calculated on a Pro Forma Basis for the Reference Period most recently ended for which financial statements have received been delivered under this Agreement in accordance with GAAP;
(with sufficient copies for each of the Lendersiii) such customary closing documentation amendments to the Security Documents as the Administrative Agent reasonably requests to cause the Security Documents to secure the Obligations after giving effect to such Incremental Increase;
(iv) to the extent requested by the Administrative Agent, customary opinions of legal counsel (including local counsel in each relevant jurisdiction) to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Commitment), dated as of the effective date of such Incremental Increase; and
(v) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Increase and the validity of such Incremental Increase, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Increase), prepayment terms and final maturity) of such Incremental Commitments shall have reasonably requestedbe the same as the terms applicable to the Commitments hereunder, and such Incremental Commitments shall constitute Commitments hereunder;
(h) Schedule 1.1(a) shall be deemed revised to include any increase in the Commitments pursuant to this Section 2.22 and to include thereon any Person that becomes a Lender with a Commitment pursuant to this Section 2.22; and
(i) on the effective date of such Incremental Increase, the existing Lenders with Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Loans and participation interests in Letters of Credit to the Lenders providing such Incremental Commitments, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Commitments) will hold its pro rata share (based on its Applicable Percentage of the increased aggregate Commitments) of outstanding Loans and participation interests in Letters of Credit. The Incremental Commitments and credit extensions thereunder shall constitute Commitments and credit extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Security Documents and from the Guaranty. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Credit Documents shall be amended by, such Incremental Amendments to the extent the Administrative Agent and the Borrower deem necessary in order to establish Incremental Commitments on terms consistent with and/or to effect the provisions of this Section 2.22. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. This Section 2.22 shall supersede any provisions in Section 2.13(b) or 10.5 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Greenbacker Renewable Energy Co LLC)
Incremental Commitments. (a) The Borrower mayand any one or more Lenders (including New Lenders) may from time to time prior to the Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by written notice executing and delivering to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment Agents an Increased Facility Activation Notice specifying (and, in connection therewith, the L/C Commitmenti) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of such increase and (ii) the requested applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Total Revolving Credit Commitment Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the ClosingSecond Amendment Effective Date pursuant to this paragraph shall not exceed $240,000,000the Maximum Permitted Increase Amount and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in minimum increments of $5,000,000 and a minimum amount of at least $10,000,000 or equal to the remaining Incremental Commitment Amount25,000,000 and (y) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor no more than 60 days five Increased Facility Closing Dates may be selected by the Borrower after the date of such notice and Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, in any event, must be on or prior to with the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage consent of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit New Lender hereunder. Any increase Supplement (each, a “New Lender Supplement”), substantially in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange forform of Exhibit H, whereupon such bank, financial institution or chooses not to arrange for, Augmenting Lenders.
other entity (b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b“New Lender”) shall be subject become a Lender for all purposes and to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) same extent as if originally a party hereto and (c) of Section 4.01 shall be satisfied bound by and entitled to the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer benefits of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedthis Agreement.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount for all Incremental Commitments not to exceed $50,000,00025,000,000; provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom and the Borrower shall be in Pro Forma Compliance with Section 7.12(a); provided, further, that each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Commitment, the L/C Commitment) Issuer and the Swingline Lender (which approvals shall not be increased by an amount not to exceed the Incremental Commitment Amount at such timeunreasonably withheld or delayed). Such notice shall set forth (i) the amount of the additional Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount5,000,000) and, if applicable, the L/C Commitment, and (ii) the date on which such increase is additional Commitments are requested to become effective (which shall not be not less than 10 ten Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount ).
(each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting additional Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status of such Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The Incremental Commitments shall rank pari passu in right of payment and of security with the foregoing, no increase in existing Loan Document Obligations and all terms of any additional Commitments and Credit Extensions under such additional Commitments shall be identical to the Total Revolving existing Commitments and Credit Commitment Extensions.
(d) No additional Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, ; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the additional Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that following the establishment of any additional Commitments, the outstanding Revolving Loans are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Borrowing of the relevant Class to be converted into an ABR Borrowing of such customary closing documentation as Class on the date of each additional Commitment, or by requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, on one or more occasions, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an additional aggregate principal amount not to exceed the Incremental Commitment Amount at Cap from one or more Incremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide such timeIncremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Lender is an existing Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount), (2) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (3) the date on which such increase is Incremental Commitments are requested to become 4905-5289-3475 v.5 effective (which the “Increased Amount Date”). The Borrower shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in have no obligation to offer any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and participate in any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersIncremental Commitments.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s written consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.22 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial an Authorized Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of legal opinions, board resolutions and other closing certificates and documentation to the Lenders) extent reasonably required by the Administrative Agent, and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to three (3) occasions during the period from time the Closing Date to timethe thirty-six (36) month anniversary of the Closing Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $100,000,000 from one or more additional Lenders (which may include any existing Lender, each, a “New Term Loan Lender”) willing to provide such timeincremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $100,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities (requested incremental Commitments. On any Increased Amount Date on which any such bank or other entity being called an “Augmenting Lender”)incremental Commitments are effective, which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal subject to the unsubscribed amount; provided that, notwithstanding satisfaction of the foregoingforegoing terms and conditions, (i) no person each New Term Loan Lender shall become make a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant Loan to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank Borrower (which shall not be unreasonably withhelda “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment and the L/C Commitment New Term Loans made pursuant thereto. The terms and provisions of any Issuing Bank the New Term Loans and the incremental Commitments shall not be increased pursuant identical to this Section 2.23 without the prior written consent of such Issuing Bank. existing Loans.
(b) The Borrower and each Augmenting New Term Loan Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status of such New Term Loan Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as a Revolving Credit Lender hereunderthe Commitments (including as to pricing and maturity). Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Term Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. Any fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the New Term Loan Lenders and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the foregoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.23 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date and (iv) such incremental Commitments and the Loans to be made thereunder shall be permitted by the terms and conditions of each of the 2008 Exchangeable Senior Note Indenture, the 2011 Senior Unsecured Note Indenture, the 2012 Senior Unsecured Note Indenture, the Senior Note Indenture and any Additional Senior Unsecured Indenture.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all New Term Loans, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Term Loan Agreement (MPT Operating Partnership, L.P.)
Incremental Commitments. (a) The At any time during the Availability Period, subject to the terms and conditions set forth herein, the Borrower maymay at any time and from time to time, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to timeeach of the Lenders), request to add additional Commitments (together the “Incremental Extensions of Credit”) in minimum principal amounts of $5,000,000, provided that such amount may be less than $5,000,000 if such amount represents all the Total Revolving Credit Commitment (and, in connection therewith, remaining availability under the L/C Commitment) be increased by an aggregate principal amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth below, provided, further, that (x) immediately prior to and after giving effect to any Incremental Facility Amendment, no Default has occurred or is continuing or shall result therefrom and (y) the amount of the requested increase in the Total Revolving Credit Commitment (which Borrower shall be in minimum increments compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available. The Incremental Extensions of Credit (a) shall be in an aggregate principal amount not exceeding $5,000,000 20,000,000 and a minimum amount of $10,000,000 or equal (b) shall have the same terms as the Commitments. The Borrower may chose to offer each Lender (an “Existing Lender”) the opportunity to commit to the remaining Incremental Commitment AmountExtensions of Credit; provided that no Existing Lender shall be obligated to provide any Incremental Extensions of Credit unless it so agrees. Any additional bank, financial institution, Existing Lender or other Person that elects to extend Incremental Extensions of Credit shall be reasonably satisfactory to the Administrative Agent (any such bank, financial institution, Existing Lender or other Person being called an “Additional Lender”) and shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.20, and, if applicableas appropriate, the L/C Commitmentother Loan Documents, executed by the Borrower, each Additional Lender and the date on which such increase is requested to become effective (which Administrative Agent. Commitments in respect of Incremental Extensions of Credit shall be not less than 10 Business Days nor more than 60 days after Commitments for all purposes under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such notice and which, Borrowing” in any event, must such Section 4.02 shall be on or prior deemed to refer to the Maturity Incremental Facility Closing Date). Upon each increase in the Commitments pursuant to this Section 2.20, each Existing Lender will automatically and shall offer without further act be deemed to have assigned to each Revolving Credit Additional Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or providing a portion of the offered amount (Incremental Extension of Credit, and each such Additional Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (will automatically and any Lender that does not deliver such a notice within such period of 10 days shall without further act be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being assumed, a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered portion of such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Existing Lender’s Revolving participations hereunder in outstanding Letters of Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of Swingline Loans such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23each such deemed assignment and assumption of participations, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion percentage of the Administrative Agent aggregate outstanding (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds participations hereunder in Letters of a new Revolving Credit Borrowing, and (ii) participations hereunder in Swingline Loans held by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders each Lender (including each such Additional Lender) will equal such Lender’s Applicable Percentage and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16if, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on the conditions Incremental Facility Closing Date be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The proceeds of the Incremental Extensions of Credit shall be used for the purposes set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested5.11.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $20,000,000; provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom; provided, further, that (1) each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Revolving Commitment, the L/C CommitmentIssuer and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) be increased by an amount not to exceed and (2) the Incremental Commitment Amount at Borrower may make only 4 such timerequests. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000, or equal to if the remaining Incremental Commitment Amount) and, if applicableCommitments are less than $5,000,000, the L/C remaining Incremental Commitment), and (ii) the date on which such increase is Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice) and (iii) in the case of Incremental Term Loan Commitments, either agree whether such Incremental Term Loan Commitments are to increase its Revolving Credit Commitment by all be Term Loan Commitments or a portion of commitments to make term loans with terms different from the offered amount Term Loans (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing LenderOther Term Loans”). In the event that, on the 10th day after the Administrative Agent All Incremental Term Loans shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase be made in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities Dollars.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Term Lender and/or additional Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such Lender. Any increase Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the Revolving Credit Commitment may terms of the Incremental Term Loans to be made in an amount which is less than thereunder. The Administrative Agent shall promptly notify each Lender as to the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld, conditioned or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the existing Revolving Loans and the existing Term Loans;
(ii) in the Total case of Incremental Term Loans, shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders;
(v) in the case of Incremental Term Loans, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(vi) in the case of Incremental Term Loans, may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of initial Term Loans hereunder, as specified in the applicable Incremental Assumption Agreement;
(vii) without the prior written consent of any Loan Party or Credit Party, if the Effective Yield on any secured Other Term Loans (as determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the Applicable Margin for each such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans; and
(viii) all material terms of any additional Revolving Credit Commitment Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Term Loan Commitments or additional Revolving Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; (ii) the Total Leverage Ratio on a Pro Forma Basis after giving effect to such Incremental Term Loans or Revolving Commitments, as applicable, shall be at least 0.25x less than the maximum Consolidated Net Leverage Ratio permitted for such period under Section 7.12; and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) In connection with any such customary closing documentation additional Revolving Commitments, each existing Revolving Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the existing Revolving Commitments, multiplied by (ii) the amount of such Incremental Commitment. In connection with any such Incremental Term Loan Commitments, each existing Term Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Term Loan Commitments in an amount equal to (i) a fraction, the numerator of which is the Outstanding Amount of such Term Lender’s Term Loans, and the denominator of which it the Outstanding Amount of all Term Loans of all Term Lenders, multiplied by (ii) the amount of such Incremental Commitment.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and that following the establishment of any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Class on the date of each Incremental Term Loan or additional Revolving Commitment, or by allocating a portion of each Incremental Term Loan to each outstanding SOFR Term Borrowing of the same Class on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Credit Agreement that would prohibit such an initial Interest Period), or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs). In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.6(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time and from time to time, request that the Total make one or more requests for Incremental Term Advance Commitments and/or Incremental Revolving Credit Commitment (andFacility Commitments, as applicable, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for from one or more banks or other entities Incremental Term Lenders and/or Incremental Revolving Facility Lenders (any such bank or other entity being called an “Augmenting Lender”), which may include any existing Lender) willing to provide such Incremental Term Advance Commitments and/or Incremental Revolving Facility Commitments, to extend as the case may be, in their own discretion; provided, that each Incremental Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal Facility Lender and Incremental Term Lender shall be subject to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent approval of the Administrative Agent and the Issuing Bank (which approval shall not be unreasonably withheld) unless such Incremental Term Lender or Incremental Revolving Facility Lender, as the case may be, is a Lender or an Affiliate of a Lender. If any Lender is willing, in its sole and absolute discretion, to provide Incremental Term Advance Commitments hereunder, it shall execute and deliver to the Agent an Incremental Term Advance Activation Notice specifying (i) the amount of such Incremental Term Advance Commitment, (ii) the L/C Commitment of any Issuing Bank applicable Incremental Term Facility Maturity Date (which shall not be increased pursuant earlier than the Maturity Date), (iii) the amortization schedule for the corresponding Incremental Term Advances (the average weighted life to this Section 2.23 without maturity of which shall not be shorter than that of the prior written consent then outstanding Term Advances) and (iv) the Applicable Margin for such Incremental Term Advances (provided that in the event that the all-in margin of such Issuing BankIncremental Term Advances exceeds the Applicable Margin for the Term Advances by more than 0.25% per annum, the Applicable Margin for the Term Advances shall be increased such that the resulting pricing differential shall be equal to 0.25% per annum). Each Lender having an Incremental Term Advance Commitment agrees, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Advances to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Advance Commitment. The Borrower and each Augmenting Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute all and deliver to the Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Advance Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Advances and/or its status as a Incremental Revolving Credit Lender hereunder. Any increase Facility Commitments; provided, that from and after the effectiveness of each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall thereafter be Revolving Facility Commitments and, in the Revolving Credit Commitment may event that any Incremental Term Advances have the same terms as the Term Advances, such Incremental Term Advances shall thereafter be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Term Advances. Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and all actions terms of the Incremental Term Advance Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.01. Any such deemed amendment may be reasonably necessary memorialized in writing by the Agent with the Borrower’s consent (not to ensure thatbe unreasonably withheld) and furnished to the other parties hereto, after giving effect and no such other party shall have any right to consent to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltysuch deemed amendment.
(cb) Notwithstanding the foregoing, no increase in the Total Incremental Term Advance Commitment or Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (bSection 4.02(b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer an officer of the BorrowerBorrower and (ii) the Agent shall have received board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Agent, consistent with those delivered on the Effective Date.
(c) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Advances in the form of additional Term Advances, when originally made, are included in each Borrowing of outstanding Term Advances on a pro rata basis, and (ii) all Revolving Facility Advances in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Advances on a pro rata basis. The Borrower agrees that Section 2.13 shall apply to any conversion of Eurodollar Rate Advances to Base Rate Advances reasonably required by the Administrative Agent shall have received (with sufficient copies for each of Lenders to effect the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedforegoing.
Appears in 1 contract
Incremental Commitments. (a) The After the Restatement Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitment (andFacility Commitments, as applicable, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount available at the time such timeIncremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01 of this Agreement as in effect immediately prior to the Amendment Agreement Effective Date) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 10,000,000, or equal to the remaining Incremental Commitment AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall be not less than 10 Business Days nor more than 60 days after together with any then outstanding Term A Loans, Term A- -1 Loans or Term B Loans, as applicable, form a single Class of) Term A Loans, Term A--1 Loans or Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date of such notice Term A Loans, Term A- -1 Loans and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount Term B Loans (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing LenderOther Incremental Term Loans”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities .
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or its status Incremental Revolving Facility Commitments; provided, that:
(i) any (x)(A) commitments to make additional Term B Loans shall have the same terms as the Term B Loans, and shall form part of the same Class as the Term B Loans, (B) commitments to make additional Term A Loans shall have the same terms as the Term A Loans, and shall form part of the same Class as the Term A Loans (and shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) and (C) commitments to make additional Term A- -1 Loans shall have the same terms as the Term A- -1 Loans, and shall form part of the same Class as the Term A- -1 Loans (and shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of all then outstanding Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to this Section 2.21 shall rank equally and ratably in right of security with the Term A Loans and Term B Loans,
(iii) (x)(1) other than with respect to Permitted Earlier Maturity Debt, the final maturity date of any Incremental Term A Loans shall be no earlier than the Term A Maturity Date in effect at the date of incurrence of such Incremental Term A Loans and (2) subject to clause (i) above, except as to pricing, amortization, final maturity date and participation in mandatory prepayments (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have terms that (as determined by the Borrower in good faith) are no more restrictive, taken as a Revolving Credit Lender hereunder. Any whole, to the Borrower and its Subsidiaries, than the Term A Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent and (y)
(1) other than with respect to Permitted Earlier Maturity Debt, the final maturity date of any Incremental Term Loans that are not additional Term A Loans, additional Term A--1 Loans, additional Term B Loans or Incremental Term A Loans shall be no earlier than the Term B Maturity Date in effect at the date of incurrence of such Incremental Term Loans and (2) except as to pricing, amortization, final maturity date and participation in mandatory prepayments (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have the terms that (as determined by the Borrower in good faith) are no more restrictive, taken as a whole, to the Borrower and its Subsidiaries, than the Term B Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) other than Permitted Earlier Maturity Debt, (x) the Weighted Average Life to Maturity of any Incremental Term A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans and (y) the Weighted Average Life to Maturity of any Incremental Term Loans that are not additional Term A Loans, additional Term B Loans or Incremental Term A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) with respect to any Other Incremental Term Loan incurred prior to the date that is 12 months after the Restatement Effective Date, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Eurodollar Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding (this clause (v), the “MFN Provision”),
(vi) such Other Incremental Term Loans may require participation on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) with the Term A Loans, Term A- -1 Loans and Term B Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitment Facility Commitments,
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral, and
(ix) the Borrower shall be in compliance with the Financial Covenants (if applicable) at the time of the incurrence of such Incremental Term Loans and/or Incremental Revolving Facility Commitments on a Pro Forma Basis for the then most recently ended Test Period. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Transaction, (A) to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) and clause (ix) of the preceding paragraph (b) shall be tested at the time of the execution of the acquisition agreement, the declaration of the dividend by the Board of Directors of the Borrower or the applicable Subsidiary or the giving of the irrevocable notice of repayment or redemption, as applicable related to such Limited Condition Transaction (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans) and (B) no Event of Default shall exist under Section 7.01(a) or, with respect to the Borrower only, under Sections 7.01(h) or 7.01(i) at the time such Incremental Term Loans are incurred; (ii) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations (with the representation in Section 3.18 made on the date of funding of such Incremental Term Loans and after giving effect to such Limited Condition Transaction and other transactions on such date in an amount which is less than connection therewith) and those representations of the increase seller or the target company (as applicable) included in the acquisition agreement related to the person or business to be acquired that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (iii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Restatement Effective Date as to such matters as are reasonably requested by the Borrower if Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenderseffectiveness of each Incremental Assumption Agreement.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent that (i) by requiring all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding Revolving applicable Class of Term Loans to be prepaid with the proceeds of on a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerpro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of EurodollarTerm SOFR Loans to ABR Loans reasonably required by the Administrative Agent shall have received to effect the foregoing.
(with sufficient copies e) Notwithstanding anything to the contrary in this Agreement: (1) this Section 2.21 is for each the benefit of the LendersBorrower and shall be applicable to a transaction only at the Borrower’s express election (provided the requirements of this Section 2.21 are otherwise met); and (2) such customary closing documentation as the Administrative Agent shall have reasonably requestedTransaction Support Agreement Transactions were not implemented pursuant to this Section 2.21 and this Section 2.21 does not and will not apply to the Transaction Support Agreement Transactions.
Appears in 1 contract
Sources: Amendment Agreement (Qwest Corp)
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Revolving Commitments (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, by an aggregate principal amount of up to One Hundred Million and 00/100 Dollars ($100,000,000.00), so long as, after giving effect thereto, the aggregate amount of the Revolving Commitments hereunder does not exceed Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00); provided that at the Total Revolving Credit Commitment time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), (A) no Material Default shall have occurred and be continuing or would result therefrom, and (B) the Consolidated Leverage Ratio shall be less than or equal to sixty percent (60%); provided, further, that each such Person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection therewithwith any additional Revolving Commitment, the L/C Commitment) Issuer (which approvals shall not be increased by an amount not to exceed the Incremental Commitment Amount at such timeunreasonably conditioned, withheld or delayed). Such notice shall set forth (i) the amount of the additional Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment35,000,000), and (ii) the date on which such increase is additional Revolving Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 calendar days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount ).
(each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting additional Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status of such Lender. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each additional Revolving Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the Total existing Revolving Credit Commitment Loans; and
(ii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No additional Revolving Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, ; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the additional Revolving Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) In connection with any such customary closing documentation additional Revolving Commitments, each existing Revolving Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the existing Revolving Commitments, multiplied by (ii) the amount of such Incremental Commitment.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that following the establishment of any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing to be converted into an ABR Borrowing on the date of each additional Revolving Commitment, or by requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)
Incremental Commitments. (a) The Borrower Company may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at from one or more Incremental Lenders (which may include any existing Lender) willing to provide such timeIncremental Advances in their sole discretion; provided, that each Incremental Lender (which is not an existing Lender) shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments multiples of $5,000,000 25,000,000) and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount(B) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Commitments are requested to become effective (which the “Increased Amount Date”). The Incremental Advances shall be not less than 10 Business Days nor more than 60 days after in the date form of such notice and which, in any event, must be on or prior to the Maturity Date)term loans, and shall offer be made pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, the Agent and each Revolving Credit applicable Incremental Lender. No Lender the opportunity shall be obligated to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders2.20 unless it so agrees.
(b) The Company and each Incremental Lender shall execute and deliver to the Agent an agreement in form and substance reasonably satisfactory to the Agent (each, an “Incremental Assumption Agreement”) to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans Incremental Advances to be prepaid with made thereunder, and the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) Incremental Advances thereunder shall be subject made on terms and conditions substantially identical to Section 2.16the then outstanding Advances (including pricing, but otherwise without premium or penaltycovenants, defaults and maturity date).
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.20 unless (i) on the date of such increase, effectiveness (unless otherwise agreed among the conditions Incremental Lenders and the Company and consented to by the Agent (such consent not to be unreasonably withheld or delayed)) (A) the representations and warranties set forth in paragraphs Article IV are correct in all material respects (b) except those representations and (c) of Section 4.01 warranties qualified by materiality, which shall be satisfied true and correct) on and as of such date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) as of such earlier date and the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Financial Officer the Company and (B) no Event of the BorrowerDefault or Potential Event of Default shall have occurred and be continuing or would result from such Incremental Commitment, and (ii) the Administrative Agent shall have received such legal opinions, board resolutions and other closing certificates and documentation (with sufficient copies for each including opinions of counsel) as the Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request and (iii) the Incremental Commitment of each Incremental Lender that was not, prior to the applicable Increased Amount Date, a Lender hereunder shall not be less than $5,000,000.
(d) In accordance with the terms of the penultimate paragraph of Section 9.01, any Incremental Amendment may, without the consent of any other Lender, effect such customary closing documentation amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the Administrative reasonable opinion of the Agent and the Company, to implement the provisions of this Section, a copy of which shall have reasonably requestedbe made available to each Lender.
(e) For the avoidance of doubt, Incremental Advances made in reliance on this Section 2.20 are intended to be fully fungible with the Initial Advances made on the Effective Date. The parties to the applicable Incremental Amendment shall structure the Incremental Advances to be made thereunder so that, after giving effect to the making of such Incremental Advances, the scheduled amortization payments, the Types and Interest Periods comprising such Incremental Advances are ratably the same as those for the Advances outstanding immediately prior to the making of such Incremental Advances.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Computer Sciences Corp)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe nine (9) month anniversary of the Closing Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $200,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $200,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities requested incremental Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status of such incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as a Revolving Credit Lender hereunderthe Commitments (including as to pricing and maturity). Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby (including adjusting the Applicable Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the forgoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.4 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.4 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 6.13 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Loans in respect of incremental Commitments, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Healthcare Trust of America, Inc.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe twenty-four (24) month anniversary of the Closing Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $225,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $225,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities requested incremental Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status of such incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as a Revolving Credit Lender hereunderthe Commitments (including as to pricing and maturity). Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby (including adjusting the Applicable Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the forgoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.4 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.4 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 6.13 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Loans in respect of incremental Commitments, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Healthcare Trust of America, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such timeterms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”).
(b) The Borrowers and each Incremental Revolving Lender shall be not less than 10 Business Days nor more than 60 days after the date of such notice execute and which, in any event, must be on or prior deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative 89 Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerCompany, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (with sufficient copies for each of including amendments to the LendersMortgages and other Security Documents and title endorsement bringdowns) such customary closing documentation as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall have apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) The Borrower After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such timeterms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicablewhich shall not exceed the Incremental Amount, the L/C Commitment, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be not less than 10 Business Days nor more than 60 days after requested on a single Increased Amount Date, and (y) the date terms of such notice and whichFILO Commitments, including pricing, shall be set forth in any eventsuch notice, must be on or prior to the Maturity Date)if applicable, and shall offer each be as agreed by the relevant Incremental Revolving Credit Lender Lenders, the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shallBorrowers, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree ).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered an Incremental Assumption Agreement and such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the Administrative Agent may take effectiveness of any and all actions as may Incremental Assumption Agreement, this Agreement shall be reasonably deemed amended to the extent (but only to the extent) necessary to ensure thatincrease the U.S. Revolving Facility or the Canadian Revolving Facility, after giving effect to any increase in as the Total Revolving Credit Commitment pursuant to this Section 2.23case may be, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion amount of the Administrative Agent (i) Incremental Revolving Facility Commitments evidenced thereby, except as required by requiring the outstanding Revolving Loans to be prepaid with the proceeds last sentence of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs clause (b) and as required by clause (c) of Section 4.01 shall ). Any such deemed amendment may be satisfied and memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall have received execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a certificate to that effect dated such date standalone basis, and executed by (z) a Financial Officer prohibition on optional prepayments of the BorrowerFILO Loans at any time when Revolving Loans, and (ii) the Administrative Agent shall have received (with sufficient copies for each an amendment to Section 5.02(b) of the LendersU.S. Collateral Agreement or Section 5.02(b) such of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary closing documentation fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the Administrative Agent shall have reasonably requestedU.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group, Inc.)
Incremental Commitments. (a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the Total then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (w) if such Incremental Term Loan Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld), (x) if such Incremental Revolving Credit Commitment (and, in connection therewithis to be provided by a Person that is not already a Revolving Lender, the L/C CommitmentAdministrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) be increased by in the event of an amount assignment to such Person (such consent not to exceed be unreasonably withheld) and (y) the Incremental Commitment Amount at such time. Such notice shall set forth Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the requested increase in minimum aggregate principal amount accepted shall equal the Total Revolving Credit Commitment lesser of (which shall be in minimum increments of $5,000,000 and a minimum amount of i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the remaining sum of (i) $200,000,000, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Commitment AmountEquivalent Debt and (y) andvoluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, if applicablein each case under clauses (x) and (y), the L/C Commitment, other than prepayments from proceeds of Long-Term Indebtedness and the date (iii) any additional amount so long as on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of incurrence of such notice and whichIncremental Commitment (subject to the terms of Section 2.17(b) below), in any event, must be on or prior to the Maturity Datecase of this clause (iii), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that Secured Leverage Ratio does not deliver such exceed 3.50 to 1.00 on a notice within such period Pro Forma Basis (assuming the full amount available thereunder is drawn and without netting the cash proceeds thereof) with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of 10 days calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have declined utilized the amounts under clause (ii) prior to increase its Revolving Credit Commitmentusing the amounts under clause (i) or (each Lender so declining or being iii) and the Borrower shall be deemed to have declined being a “Non-Increasing Lender”utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the The Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”)financial institutions, which may include any LenderLenders, to extend Revolving Credit Commitments Commitments, provide Incremental Term Loans or increase their applicable existing Revolving Credit Commitments Term Loans in an aggregate amount equal to the unsubscribed amountamount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the it in connection with any such transaction; provided that, notwithstanding with respect to any Incremental Commitment incurred for the foregoingprimary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to this such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 2.23 without 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the prior written consent representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Issuing Bank Borrower) shall be true and correct in all material respects (which or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall not constitute, or otherwise be unreasonably withheld) and (ii) deemed to be, a commitment on the L/C Commitment part of any Issuing Bank shall not be increased pursuant Lender to this Section 2.23 without the prior written consent of such Issuing Bank. increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Borrower Loan Parties and each Augmenting Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term Loans and/or its status as a Incremental Revolving Credit Lender hereunder. Any increase Commitments; provided that:
(i) any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall have the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans,
(ii) any commitments to make Incremental Revolving Credit Commitment may Loans shall have the same terms as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(iii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be made subject to compliance with clauses (iv) through (viii) below,
(iv) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in an amount which is less priority with the Liens securing the existing Loans,
(v) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the increase requested Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower if and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(vi) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans with the longest remaining Weighted Average Life to Maturity,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(viii) Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral, and
(ix) the interest rate margins and (subject to clause (v) above) amortization schedule applicable to the Loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment is unable higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to arrange forthe incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or chooses Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to arrange for, Augmenting Lenders.
(bbe unreasonably withheld) and furnished to the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent that (i) by requiring all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding Revolving applicable Class of Term Loans to be prepaid with the proceeds of on a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerpro rata basis, and (ii) the Administrative Agent shall have received (with sufficient copies for all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the Lenders) such customary closing documentation as applicable Class of outstanding Revolving Loans on a pro rata basis. Notwithstanding anything to the Administrative Agent contrary, this Section 2.17 shall have reasonably requestedsupersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the Total Revolving Credit Commitment (andaggregate, in connection therewith, cumulative amount of all Incremental Commitments established pursuant to this Section 2.19 after the L/C Commitment) be increased by an amount Assignment and Amendment Effective Date shall not to exceed the Incremental Commitment Amount at $25,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amounti) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor more than 60 days (or such shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent, (ii) the amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Agent and, to the extent applicable, each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and other extensions of credit to be made thereunder may be (i) identical to the terms and conditions of the Commitments and Loans and other extensions of credit made hereunder, (ii) in a separate tranche of revolving loans and commitments or (iii) incurred in the form of term loans, in each case as agreed by the applicable Lenders.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such notice prior date, (iii) after giving effect to and whichthe making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in any event, must be compliance with the covenants set forth in Section 6.12 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day of the Test Period most recently ended on or prior to the Maturity Datedate of such effectiveness, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions under this Section 2.19 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Agent, to give effect to the provisions of this Section 2.19 (including to evidence a separate tranche of revolving loans and commitments or term loans).
(d) In the case of Incremental Commitments described in Section 2.19(b)(i), upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall offer each Revolving Credit be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of such Incremental Lender and (B) the aggregate amount of the proposed Lenders’ Commitments shall be increased amountby the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. Each Revolving For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender shallholding such Commitment, by notice to the Borrower and the Administrative Agent given not more than 10 days after Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of the Administrative Agent’s noticeeffectiveness of any Incremental Commitments described in Section 2.19(b)(i), either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined assigned to increase its Revolving Credit Commitment) (each Incremental Lender so declining or being holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any purchased from each Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided thatprincipal amount thereof (together with accrued and unpaid interest), notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase interests in the Revolving Loans and participations in Letters of Credit Commitment may outstanding on such date as shall be made necessary in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any increase in the Total Revolving Credit Commitment such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to this Section 2.232.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans (if any) of other Lenders so that, after giving effect thereto, all Loans that are Eurodollar Loans are held by the Revolving Credit Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Lender will make ABR Loans by transferring funds to the Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Lenders in accordance with their new Pro Rata then-current Applicable Percentages. This may be accomplished at On the discretion date of the Administrative Agent (i) by requiring effectiveness of such Incremental Commitments, the outstanding Revolving Loans Borrower will pay to be prepaid with the proceeds of a new Revolving Credit BorrowingAgent, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination for the accounts of the foregoingLenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Loans of the Borrower being prepaid. Any prepayment or assignment described The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this paragraph (b) Agreement shall be subject not apply to the transactions effected pursuant to the immediately preceding sentence. The Agent shall notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.19 and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.16, but otherwise without premium or penalty2.19(e).
(cf) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative The Agent shall have received a certificate notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to that effect dated such date in Section 2.19 and executed by a Financial Officer of the Borrowereffectiveness of any Incremental Commitments, and (ii) in each case advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have reasonably requestedbeen made pursuant to Section 2.19(e).
Appears in 1 contract
Sources: Borrower Assignment and Assumption Agreement (BrightSphere Investment Group Inc.)
Incremental Commitments. (a) The Borrower mayCompany may at any time, by written notice to the Administrative Agent and from time to time, by notice to the Administrative Agent, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Aggregate Commitments provided for under this Agreement (each such increase, an “Incremental Commitment Increase”) or enter into one or more tranches of term loans (each an “Incremental Term Loan”) so long as, after giving effect thereto, the aggregate amount of all such Incremental Commitment Increases and all such Incremental Term Loans, taken together, does not exceed $500,000,000; provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,200,000,000 less any amount of Incremental Term Loans effected pursuant to this Section 2.24, (ii) the maximum Revolving Credit Facility Sublimit shall not at any given time be in excess of $1,250,000,000 (it being understood and agreed that the Revolving Facility Sublimit shall be increased on a dollar-for-dollar basis concurrently with any Incremental Commitment Increase effected under and in accordance with this Section 2.24 (which and shall not be increased concurrently with any Incremental Term Loan effected under and in accordance with this Section 2.24), subject at all times to the foregoing $1,250,000,000 absolute limitation), (iii) any such Incremental Commitment Increase or Incremental Term Loan shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 and any whole multiple of $10,000,000 or equal to the remaining in excess thereof and (iv) each Incremental Commitment AmountIncrease will be treated as a Commitment under this Agreement; provided, further, that (A) andno Lender shall be required to provide all or any portion of such Incremental Commitment Increase or Incremental Term Loan and nothing contained in this Section 2.24 shall constitute, if or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time and (B) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase or Incremental Term Loan on the Incremental Commitment Increase Effective Date or Incremental Term Loan Effective Date, as applicable. To achieve the full amount of a requested increase or incremental term loans, as applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower Company may arrange for one or more also invite additional banks or other entities financial institutions (any such bank or other entity being called each an “Augmenting Lender”), which may include any Lender, ) to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments become Incremental Increase Lenders in respect of an aggregate amount equal Incremental Commitment Increase pursuant to a joinder agreement in form and substance satisfactory to the unsubscribed amountAdministrative Agent (each such joinder agreement, an “Incremental Joinder Agreement”) executed by the Borrowers, each Incremental Increase Lender (including any existing Lender and any Augmenting Lender) participating in such increase and the Administrative Agent or to become Incremental Term Loan Lenders in respect of an Incremental Term Loan pursuant to an amendment or restatement in form and substance satisfactory to the Administrative Agent (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Incremental Term Loan Lender (including any existing Lender and any Augmenting Lender) participating in such tranche of incremental term loans and the Administrative Agent; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit that each Incremental Increase Lender and no Revolving Credit each Incremental Term Loan Lender (including any Augmenting Lender’s Revolving Credit Commitment ) shall increase pursuant be subject to this Section 2.23 without the prior written consent approval of the Administrative Agent and the each Issuing Bank Lender (which shall such approval in each case not to be unreasonably withheldwithheld or delayed) and (ii) the L/C Commitment approval of the Company, but not the approval of any Issuing Bank shall not be other Lender. If the Aggregate Commitments are increased pursuant to in accordance with this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as Section, the Administrative Agent and the Company shall reasonably specify to evidence its Revolving Credit determine the effective date (the “Incremental Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase Increase Effective Date”) and the final allocation of such increase, and if incremental term loans are entered into in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange foraccordance with this Section, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and the Company shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such incremental term loans. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date or such incremental term loans and the Incremental Term Loan Effective Date, as applicable. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all actions as may Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be reasonably necessary deemed to ensure have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any increase additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the Total Revolving contrary set forth herein, (i) the terms of each Incremental Commitment Increase shall be identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Fee and any other pricing terms (if anyincluding upfront fees) are held shall be determined by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of Company, the Administrative Agent (i) by requiring and the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, applicable Incremental Increase Lenders and (ii) by causing Non-Increasing Lenders to assign portions the Incremental Term Loans (a) shall rank pari passu in right of their outstanding payment with the Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph Advances, (b) shall be subject not mature earlier than the Maturity Date (but may have amortization prior to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (bdate) and (c) of Section 4.01 shall be satisfied treated substantially the same as (and in any event no more favorably than) the Revolving Advances; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (2) the Applicable Rate and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Term Loan Lenders. As a condition precedent to any such increase or incremental term loans, the Company and the Dutch Borrower shall have received deliver to the Administrative Agent a certificate to that effect dated such date and executed signed by a Financial Officer senior vice president, the chief financial officer or the treasurer of the such Borrower (i) certifying that such Incremental Commitment Increase and/or Incremental Term Loan and the performance of such Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date and/or the Incremental Term Loan Effective Date, as applicable, before and after giving effect to such Incremental Commitment Increase and/or such Incremental Term Loans, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Company or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of any Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase and any Incremental Term Loans, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase or any Incremental Term Loans, the Administrative Agent shall have received and the Borrowers may, without the consent of any Lenders, effect such amendments (with sufficient copies for each including, without limitation, an Incremental Term Loan Amendment) to this Agreement and any other Loan Documents as may be necessary or appropriate, in the opinion of the Lenders) such customary closing documentation as Administrative Agent, to effect the Administrative Agent shall have reasonably requestedprovisions of this Section 2.24.
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Loan Amount at such timefrom one or more Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of any increase in Revolving Credit Commitments, the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in (which, unless otherwise agreed to by the Total Revolving Credit Commitment (which Administrative Agent, shall be in minimum increments integral multiples of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000 or in an amount equal to the remaining Incremental Commitment Amount), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 five Business Days nor more than 60 days after the date of such notice notice) and which, in any event, must (iii) whether such Incremental Commitments are to be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in Incremental Term Commitments. For the avoidance of doubt, no Lender shall have any obligation to assume an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, Incremental Commitment.
(ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Commitment of such Incremental Lender. Each such agreement shall specify the terms of the Incremental Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Maturity Date and (ii) if the initial yield on any Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate (including as margin the effect of any “LIBOR floor”) applicable to the Incremental Term Loans and (B) if the Incremental Term Loans are initially made at a discount or the lenders making the same receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) exceeds (the amount of such excess being referred to herein as the “Yield Differential”) the Applicable Percentage (plus the effect of the “LIBOR floor” contained in clause (a) of the definition of the term “Adjusted LIBO Rate”) for Eurodollar Loans hereunder, then the Applicable Percentages for the Loans hereunder shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. The other economic terms of any Incremental Term Loans (including the scheduled amortization and the mandatory and optional prepayment provisions thereof) shall be as agreed to by the Borrower and the Incremental Lenders, subject to the prior written approval of the Administrative Agent, and shall be set forth in the Incremental Assumption Agreement. Without the prior written consent of the Required Lenders, any Incremental Commitments consisting of Revolving Credit Commitments shall be identical in all respects to the then-existing Revolving Credit Commitments; provided, however, that (x) the Applicable Percentages, “LIBOR floor” and Commitment Fees with respect to all Revolving Credit Commitments may be increased concurrently with the effectiveness of any Incremental Commitment and (y) if the Incremental Lenders assuming such Revolving Credit Commitment and/or its status receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Commitment) from the Borrower or any Subsidiary for doing so, then the Borrower or such Subsidiary shall pay the same “upfront” or similar fee (in each case, as a percentage of the applicable Revolving Credit Lender hereunder. Any increase in Commitments) to the then-existing Revolving Credit Commitment may be made Lenders in an amount which is less than respect of their then-existing Revolving Credit Commitments concurrently with the increase requested by effectiveness of such Incremental Commitment. The Administrative Agent shall promptly notify each Lender as to the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment evidenced thereby and any increase to the Applicable Percentages, “LIBOR floor” or Commitment Fee required by the foregoing provisions of this Section 2.23(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, unless (i) on or before the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (cd) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) such customary legal opinions, board resolutions and other closing certificates and documentation as consistent with those delivered on the Closing Date under Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.15 shall have apply to any conversion of Eurodollar Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeLender, request additional Revolving Commitments (collectively, “Incremental Commitments”), from the Lender (in the sole discretion of the Lender), in an aggregate principal amount of up to $10,000,000; provided that at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at Borrower may make only 1 such timerequest. Such notice shall set forth (i) the amount of the additional Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 2,500,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment5,000,000), and (ii) the date on which such increase is additional Revolving Commitments are requested to become effective (which shall not be not less than 10 15 Business Days nor more than 60 calendar days after the date of such notice notice, unless otherwise agreed to by the Lender).
(b) The Borrower shall execute and which, in any event, must be on or prior deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent Lender shall reasonably specify to evidence its Revolving Credit the Incremental Commitment and/or its status as a Revolving Credit Lender hereunderof the Lender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any Incremental Commitment, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and all actions as terms of the Incremental Commitments evidenced thereby. Any such deemed amendment may be reasonably necessary to ensure that, after giving effect to any increase memorialized in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held writing by the Revolving Credit Lenders in accordance Lender with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent Borrower’s consent (i) by requiring the outstanding Revolving Loans not to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders unreasonably withheld or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltydelayed).
(c) Notwithstanding The terms of each additional Revolving Commitment shall be reasonably satisfactory to the foregoing, no increase Lender and in any event:
(d) (i) shall rank pari passu in right of payment and of security with the Total existing Revolving Credit Commitment Loans;
(e) (ii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(f) No additional Revolving Commitments shall become effective under this Section 2.23 2.11 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent Lender shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, ; and (ii) the Administrative Agent Lender shall have received (with sufficient copies for each closing certificates, opinions of counsel and other customary documentation requested by the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedLender.
Appears in 1 contract
Sources: Credit Agreement (Backblaze, Inc.)
Incremental Commitments. (a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the Total then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and any such Lender may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Commitments or Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity DateTerm Loans under this paragraph (a), and shall offer each Revolving Credit Lender the opportunity it being understood that (w) if such Incremental Term Loan Commitment is to increase its Revolving Credit Commitment be provided by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shalla Person that is not already a Lender, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered consented to such noticePerson being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld), (x) if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) the greater of $58,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period as of such time, (ii) the aggregate principal amount of voluntary prepayments and loan buybacks pursuant to Dutch auctions and other purchases, retirements, redemptions or repurchases, in the amount actually paid to retire such Indebtedness in connection with such buy-backs of (x) the Term Loans and any Incremental Equivalent Debt, (y) any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Lenders shall have agreed pursuant Commitments with respect thereto and (z) other Indebtedness secured on a pari passu basis to the preceding sentence Facilities, in each case, other than prepayments from proceeds of Long-Term Indebtedness (other than any Revolving Loans) or prepayments of Indebtedness incurred under clause (iii) below (including, without limitation, Indebtedness reclassified as having been incurred under clause (iii) below), (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to increase their Revolving Credit Commitments by an aggregate amount less than the increase terms of Section 2.17(b) below), in the Total Revolving Credit Commitment requested case of this clause (iii), (A) with respect to Indebtedness secured by a Lien on the Collateral on a pari passu basis to the Lien securing the Term Loans, the First Lien Net Leverage Ratio on a Pro Forma Basis (assuming the full amount available thereunder is drawn (provided that, in the case of an Incremental Term Loans in the form of a delayed draw term loan facility, such commitments thereunder shall be assumed to be fully drawn at the time of the establishment of such commitments or, if elected by the Borrower, such loans and commitments shall be tested upon incurrence of such delayed draw term loan facility) and including the use of proceeds of all Indebtedness but without netting the cash proceeds thereof) either (i) does not exceed (A) 3.10 to 1.00 or (ii) if incurred in connection with a Permitted Acquisition or Investment permitted hereunder, the First Lien Net Leverage Ratio in effect immediately prior to such incurrence, (B) with respect to Indebtedness secured by a Lien on the Collateral on a junior basis to the Lien securing the Term Loans, the Secured Net Leverage Ratio on a Pro Forma Basis (assuming the full amount available thereunder is drawn (provided that, in the case of an Incremental Term Loans in the form of a delayed draw term loan facility, such commitments thereunder shall be assumed to be fully drawn at the time of the establishment of such commitments or, if elected by the Borrower, such loans and commitments shall be tested upon incurrence of such delayed draw term loan facility) and including the use of proceeds of all Indebtedness but without netting the cash proceeds thereof) either (i) does not exceed 3.50 to 1.00 or (ii) if incurred in connection with a Permitted Acquisition or Investment permitted hereunder, the Secured Net Leverage Ratio in effect immediately prior to such incurrence, or (C) with respect to unsecured Indebtedness or Indebtedness that is secured by assets not constituting Collateral, the Total Net Leverage Ratio on a Pro Forma Basis (assuming the full amount available thereunder is drawn (provided that, in the case of an Incremental Term Loans in the form of a delayed draw term loan facility, such commitments thereunder shall be assumed to be fully drawn at the time of the establishment of such commitments or, if elected by the Borrower, such loans and commitments shall be tested upon incurrence of such delayed draw term loan facility) and including the use of proceeds of all Indebtedness but without netting the cash proceeds thereof) either (i) does not exceed 4.25 to 1.00 or (ii) if incurred in connection with a Permitted Acquisition or Investment permitted hereunder, the Total Net Leverage Ratio in effect immediately prior to such incurrence (this clause (iii), the “Ratio Incremental Amount”) and (iv) unused amounts under the General Debt Basket. Any Incremental Loan or Incremental Commitment may be established or incurred under either of clauses (i), (ii), (iii) or (iv) above in the Borrower’s discretion, and any Incremental Loan or Incremental Commitment may be established or incurred concurrently under each such clause, and proceeds from any such incurrence under each clause may be utilized in a single transaction by first calculating the incurrence under clause (iii) above, then calculating the incurrence under clauses (i), (ii) and (iv) above and, for the avoidance of doubt, any such incurrence under clauses (i), (ii) and (iv) shall be disregarded for purposes of the pro forma calculation of the First Lien Net Leverage Ratio, Secured Net Leverage and Total Net Leverage for purposes of effectuating the incurrence under clause (iii) in such single or series of related transactions transaction. Any portion of any Incremental Loan or Incremental Commitment established or incurred other than under clause (iii) above shall automatically be reclassified at any time as incurred under clause (iii) if the Borrower meets the applicable ratio under clause (iii) at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Loan or Incremental Commitment (or would have met such ratio). The Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”)financial institutions, which may include any LenderLenders, to extend Revolving Credit Commitments Commitments, provide Incremental Term Loans or increase their applicable existing Revolving Credit Commitments Term Loans in an aggregate amount equal to the unsubscribed amount; provided thatamount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, notwithstanding subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Issuing Bank (which shall not be unreasonably withheldBorrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) the L/C Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the Administrative Agent in connection with any such transaction; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Transaction (“LCT-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Transaction Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Transaction Agreement, (2) as of the date of the initial borrowing pursuant to such LCT-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) as of the date of effectiveness of the applicable Limited Condition Transaction Agreement (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects to the extent that any representation and warranty is qualified by materiality or Material Adverse Effect) as of such earlier date). Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any Issuing Bank shall not be increased pursuant Lender to this Section 2.23 without the prior written consent of such Issuing Bank. increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Borrower Loan Parties and each Augmenting Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Loan Commitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term Loans and/or its status as a Incremental Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.Commitments; provided that:
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring any commitments to make Incremental Term Loans in the outstanding Revolving form of additional Initial Term B Loans to be prepaid with (“Additional Term B Loans”) shall have the proceeds same terms (other than original issue discount, upfront fees or interest rate) as the Initial Term B Loans, and shall form part of a new Revolving Credit Borrowing, the same Class of Initial Term B Loans,
(ii) by causing Non-Increasing Lenders any commitments to assign portions of their outstanding make Incremental Revolving Loans to Increasing Lenders shall have the same terms (other than upfront fees or interest rate) as the Initial Revolving Loans and Augmenting Lenders or shall form part of the same Class of Initial Revolving Loans,
(iii) by any combination of commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the foregoing. Any prepayment or assignment described in this paragraph Initial Term B Loans (b“Other Incremental Term Loans”) shall be subject to Section 2.16compliance with clauses (iv) through (ix) below (without limiting the effect of such clauses in respect of Additional Term B Loans and Incremental Revolving Loans, but otherwise without premium or penalty.as set forth therein),
(civ) Notwithstanding Incremental Loans secured on a pari passu basis will be secured by Liens that rank equal in priority with the foregoing, Liens securing the existing Loans and will rank equal in payment priority with the existing Loans,
(v) the final maturity date of any Other Incremental Term Loans shall be no increase earlier than the Latest Maturity Date applicable to Term Loans in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on effect at the date of incurrence of such increaseOther Incremental Term Loans, and, except as to pricing, amortization, prepayments, final maturity date and ranking as to security and payment priority (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not materially consistent with the Initial Term B Loans, that are not materially more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans (except to the extent such terms (w) are reasonably satisfactory to the Administrative Agent, (x) are conformed (or added) in for the benefit of the Initial Term B Loans pursuant to an amendment to this Agreement, (y) are applicable solely to periods after the Latest Maturity Date of the Initial Term B Loans existing at the time of the incurrence of such incremental facility or (z) reflect market terms and conditions set forth (taken as a whole) at the time of incurrence, issuance or effectiveness (as determined by the Borrower in paragraphs good faith)); provided that this clause (bv) shall not apply to (A) any bridge or other interim credit facility or (B) Incremental Term Loans in an aggregate principal amount not exceeding the greater of $116,000,000 and 100% of Consolidated EBITDA for the most recently ended Test Period as of such time (the “Maturity Exception”),
(vi) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans with the longest remaining Weighted Average Life to Maturity, other than any bridge or other interim credit facility and Incremental Term Loans incurred under the Maturity Exception,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(viii) the Other Incremental Term Loans, for purposes of (x) any voluntary prepayments, may provide for the ability to participate on a pro rata basis, less than pro rata basis or greater than pro rata basis and (cy) mandatory prepayments, may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis, except in respect of Section 4.01 Refinancing Term Loans and Refinancing Notes),
(ix) Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any assets other than the Collateral, and
(x) the interest rate margins, currency, pricing, discounts, rate floors, fees and (subject to clause (vi) above) amortization schedule applicable to Incremental Term Loans shall be satisfied determined by the Borrower and the Administrative Agent shall have received a certificate applicable Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan established on or prior to that effect dated such date and executed by a Financial Officer the six (6) month anniversary of the BorrowerEffective Date that (A) is a broadly syndicated term “B” loan, and (iiB) is secured by the Administrative Agent shall have received Collateral on a pari passu basis with the Initial Term B Loans, (with sufficient copies C) is incurred pursuant to the Ratio Incremental Amount, (D) is incurred other than for each purposes of consummating a Permitted Acquisition or other Investment permitted hereunder, (E) matures earlier than the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.first ann
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Incremental Commitments. (a) The Borrower At any time and from time to time prior to the Latest Maturity Date, the Company may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such noticepromptly furnish to each Lender), request that one or more Persons (which may include the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence then-existing Lenders) (A) offer to increase their Revolving Credit Commitments or to make additional Revolving Credit Commitments (if they are not already Lenders) (such increased and/or additional Revolving Credit Commitments being a “Incremental Revolving Credit Commitment”) or (B) enter into one or more tranches of term loans (such additional term loans being an “Incremental Term Loan” and together with any Incremental Revolving Credit Commitments, a “Incremental Commitments”) under this paragraph (a), it being understood that (x) if such offer is to be made by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 10.04(b) in the event of an aggregate amount assignment to such Person (such consent not to be unreasonably withheld) and (y) the Company may agree to accept less than the increase amount of any Incremental Commitment so requested; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) (x) $10,000,000 if such Incremental Commitment is denominated in U.S. Dollars or (y) €10,000,000 if such Incremental Commitment is denominated in Euro or (ii) the Total offered Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 or €10,000,000, as applicable, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (i) exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Credit Commitment requested Commitments are established or (ii) cause the failure of the Company to comply with the limitation on incurrence of Indebtedness by the Borrower, the Borrower Foreign Borrowers set forth in Section 6.01(a). The Company may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”)financial institutions, which may include any Lender, to extend Revolving Credit Commitments or Commitments, increase their existing Revolving Credit Commitments or provide Incremental Term Loans in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding amount of the foregoing, (i) no person shall become a Incremental Commitment. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Lender Commitments, and no such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant Commitments to this Section 2.23 without be allocated to the prior written consent of respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender other Applicable Agent shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunderand deliver an Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment Incremental Term Loans may be made in hereunder pursuant to an amount which is less than amendment, restatement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the increase requested other Loan Documents, executed by the Borrower Borrowers, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Borrower is unable Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to arrange forthis Agreement and the other Loan Documents as may be necessary or appropriate, or chooses not in the reasonable opinion of the Company and the Administrative Agent, to arrange for, Augmenting Lenderseffect the provisions of this Section 2.09.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this Section 2.23 unless, 2.09 unless on the proposed date of the effectiveness of such Incremental Commitment (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerCompany that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition, to the extent the Incremental Term Loan Lenders participating in such tranche of Incremental Term Loans agree, (x) the condition set forth in Section 4.02(b) shall be (I) tested at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition (provided, that such Incremental Term Loan Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans) and (II) tested at funding of such Incremental Term Loans only with respect to those Events of Default under clause (a), (b), (h) or (i) of Article VII and (y) the condition set forth in Section 4.02(a) shall be limited to the accuracy of the Specified Representations and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate (it being understood that of the representations and warranties under the Loan Documents, only the Specified Representations shall be required to be accurate as a condition to the funding of Incremental Term Loans being used to finance a Limited Condition Acquisition, all of the representations and warranties under the Loan Documents shall nonetheless be made) and (ii) the Administrative Agent shall have received (documents from the Company consistent with sufficient copies for each those delivered on the Effective Date as to the organizational power and authority of the LendersBorrowers to borrow hereunder after giving effect to such Incremental Commitment. Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) The applicable Borrower and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such customary closing other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided, that:
(i) any (v) commitments to make additional Initial U.S. Term B Loans shall have the same terms as the Initial U.S. Term B Loans, and shall form part of the same Class of Initial U.S. Term B Loans, (w) commitments to make additional Initial Euro Term B Loans shall have the same terms as the Initial Euro Term B Loans, and shall form part of the same Class of Initial Euro Term B Loans, (x) commitments to make additional Initial Term A Loans shall have the same terms as the Initial Term A Loans, and shall form part of the same Class of Initial Term A Loans, (y) commitments to Term Loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (ii) through (viii) below and (z) Incremental Revolving Credit Commitments shall have the same terms as the then outstanding Class of Revolving Credit Commitments (or, if more than one Class of Revolving Credit Commitments is then outstanding, the Revolving Credit Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Credit Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.09 shall be secured by Liens that rank equal in priority with the Liens securing the Initial Term Loans, (iii) (x) the final maturity date of any such Other Incremental Term A Loans shall be no earlier than the Latest Maturity Date applicable to Term A Loans in effect at the date of incurrence of such Other Incremental Term A Loans, and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Company and the Incremental Term Loan Lenders in their sole discretion), shall have the same terms as the Initial Term A Loans or such other terms as shall be reasonably requested.satisfactory to the Administrative Agent and (y) the final maturity date of any such Other Incremental Term B Loans shall be no earlier than the Latest Maturity Date applicable to Term B Loans in effect at the date of incurrence of such Other Incremental Term B Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Company and the Incremental Term Loan Lenders in their sole discretion), shall have the same terms as the Initial U.S. Term B Loans or the Initial Euro Term B Loans, as applicable, or such other terms as shall be reasonably satisfactory to the Administrative Agent,
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request but in no event more than twice (provided that the Total Revolving Credit Commitment (andAdministrative Agent may, in connection therewithits sole discretion, the L/C Commitment) be increased by waive such restriction), request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent, each Swingline Lender (which approval shall not be unreasonably withheld or delayed) and each Borrower (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment Amount at shall be on the same terms as the existing Commitments and in all respects shall become a part of the Commitments hereunder on such timeterms; provided, that, with the consent of the Borrowers, the Applicable Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Commitment Amount), (2) andthe aggregate amount of Incremental Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (3) the date on which such increase is Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.22 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial an Authorized Officer of each of the BorrowerBorrowers, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with sufficient copies for each of those delivered on the Lenders) Effective Date under Section 4.01 and such customary closing documentation additional documents and filings as the Administrative Agent shall have may reasonably requestedrequire to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Prior to the Commitment Termination Date, Borrower may, by written notice to the Administrative Agent from time to timeAgent, request that an increase to the Total Revolving Credit Commitment existing Commitments (andany such increase, in connection therewithany “Incremental Commitment”); provided, the L/C Commitment) be increased by an amount this Section 2.14 shall not apply to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested any increase in the Total Revolving Credit Commitment Commitments pursuant to Section 2.01(b).
(which b) Any such requested increase shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the pro rata increase in the Total Revolving Credit Commitment requested by CP Advance Rate Commitments and the Borrower, the Borrower may arrange for one or more banks or other entities LIBO Rate Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or c) No increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided thatexisting Commitments shall occur, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 Person may provide an Incremental Commitment, in each case, without the prior written consent of the Administrative Agent, which consent shall be in the sole discretion of the Administrative Agent and the Issuing Bank Lenders (which each approved Person, if any, an “Incremental Lender”).
(d) No Lender or any other Person shall not be unreasonably withheldhave any obligation to provide any or all of the Incremental Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(e) Each Incremental Commitment shall become effective as of the date agreed to among Borrower, the Administrative Agent and the applicable Incremental Lenders (the “Incremental Increase Date”), so long as (i) no Termination Event shall exist on such Incremental Increase Date before or after giving effect to such Incremental Commitments; (ii) the L/C Commitment of any Issuing Bank Incremental Commitments shall not be increased effected pursuant to this Section 2.23 without one or more joinder agreements, in form and substance satisfactory to the prior written consent of such Issuing Bank. The Borrower Administrative Agent, and each Augmenting Lender of which shall execute all such documentation as be recorded in the Register and shall be subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersconnection with any such transaction.
(bf) Each On any Incremental Increase Date, subject to the satisfaction of the parties hereto hereby agrees that foregoing terms and conditions, (i) each Lender having an existing Commitment of a Class of Advances shall assign to each of the Administrative Agent may take any Incremental Lenders having a Commitment of such Class of Advances, and all actions each such Incremental Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Class of Advances outstanding on the Incremental Increase Date as may shall be reasonably necessary to ensure in order that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23all such assignments and purchases, the outstanding Revolving Loans (if any) are such Class of Advances will be held by the Revolving Credit such Lenders having existing Commitments of such Class of Advances and Incremental Lenders ratably in accordance with their new Pro Rata Percentages. This may Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be accomplished at deemed for all purposes a Commitment of a Class of Advances and each Advance made thereunder (an “Incremental Advance”) shall be deemed, for all purposes, an Advance of such Class and (iii) each Incremental Lender shall become a Lender with respect to the discretion of the Incremental Commitment and all matters relating thereto.
(g) The Administrative Agent shall notify the Lenders, promptly upon determination of any Incremental Increase Date, of (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied Incremental Commitments and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the BorrowerIncremental Lenders, and (ii) in the case of each notice to any Lender having CP Rate Exposure or LIBO Rate Exposure, as the case may be, the respective interests in such Lender’s Advances, in each case subject to the assignments contemplated by this Section 2.14.
(h) The terms and provisions of the Incremental Advances shall be identical to the Advances.
(i) Each agreement pursuant to which any Incremental Commitments and Incremental Advances are effected may, without the consent (subject to Section 9.10) of any the Lenders but with the consent of Borrower, effect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent shall have received (with sufficient copies for each Agent, to effect the provision of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedthis Section 2.14.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments promptly deliver a copy thereof to each Lender), request the establishment of $5,000,000 and a minimum Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $10,000,000 or equal to 20,000,000. Each such notice shall specify (i) the remaining date on which the Borrower proposes that the Incremental Commitment Amount) andCommitments shall be effective, if applicable, the L/C Commitment, and which shall be a date not less than 15 days after the date on which such increase notice is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior delivered to the Maturity Date)Administrative Agent, and (ii) the amount of the Incremental Commitments being requested, and shall offer to each Revolving Credit Non-Defaulting Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage provide a portion of the proposed increased amountamount of the Incremental Commitments being requested equal to its Applicable Percentage thereof. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 seven days after the date of on which the Administrative AgentAgent shall have delivered the Borrower’s notice, either agree to increase its Revolving Credit Commitment by provide all or a portion of its Applicable Percentage of the offered amount (each Lender so agreeing of the Incremental Commitments being an “Increasing Lender”) requested or decline to increase its Revolving Credit Commitment do so (and any Lender that does not deliver such a notice within such period of 10 seven days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”do so). In the event thatIf, on the 10th seventh day after the Administrative Agent shall have delivered such the Borrower’s notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit provide Incremental Commitments by in an aggregate amount less than the increase in amount of the Total Revolving Credit Commitment requested by the BorrowerIncremental Commitments being requested, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”)financial institutions, which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit provide Incremental Commitments in an aggregate amount equal to the unsubscribed amountamount of such deficiency; provided thatthat any Person that the Borrower proposes to become an Incremental Lender, notwithstanding the foregoingif such Person is not then a Lender, (i) no person shall become a Revolving Credit Lender must be an Eligible Assignee and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant must be reasonably acceptable to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such each Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the parties hereto hereby agrees Commitments and Loans and other extensions of credit made hereunder, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent may take a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and all actions warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary or appropriate, in the opinion of the Administrative Agent, to ensure give effect to the provisions of this Section (including any increase referred to in paragraph (b) above).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a Lender, shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such date as shall be necessary in order that, after giving effect to any increase all such assignments and purchases, such Loans and participations in the Total Revolving Letters of Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are and Protective Advances will be held by all the Revolving Credit Lenders (including such Incremental Lenders) ratably in accordance with their new Pro Rata Percentages. This may be accomplished at Applicable Percentages after giving effect to the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date effectiveness of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Incremental Commitment. The Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer notify the Lenders promptly of the Borrowereffectiveness of any Incremental Commitments, and (ii) advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall have reasonably requestedApplicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to this paragraph.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime prior to the latest Maturity Date then in effect under the Term Loan A Facilities, request that the Total Revolving Credit Commitment (and, Incremental Commitments in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed (i) $200,000,000 with respect to Incremental Commitments in respect of Tranche A1 Advances and (ii) €500,000,000 with respect to Incremental Commitments in respect of Tranche A2 Advances and Tranche A3 Advances in the aggregate from one or more Incremental Commitment Amount at Lenders (which may include any existing Lender) willing to provide such timeIncremental Commitments in their sole discretion; provided that each Incremental Lender (which is not an existing Lender) shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments multiples of $5,000,000 (i) in the case of Incremental Commitments that are denominated in U.S. Dollars, US$10,000,000 and a minimum amount (ii) in the case of $10,000,000 or equal to the remaining Incremental Commitment AmountCommitments that are denominated in Euros, €10,000,000) and, if applicable, the L/C Commitment, and (B) the date on which such increase is Incremental Commitments are requested to become effective effective, (C) the terms of such Incremental Commitments and (D) whether such Incremental Commitments are to make Advances on the same terms as the existing Tranche A1 Advances, Tranche A2 Advances or Tranche A3 Advances. No Lender shall be obligated to increase its Commitments pursuant to this Section 2.18 unless it so agrees.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an agreement in form and substance reasonably satisfactory to the Administrative Agent (each, an “Incremental Assumption Agreement”) to evidence the Incremental Commitment of such Incremental Lender, which shall supplement this Agreement and, as appropriate, the other Loan Documents. Each Incremental Assumption Agreement shall specify the terms of the Incremental Advances to be not less than 10 Business Days nor more than 60 days after made thereunder, including the designation of Incremental Commitments as Tranche A1 Commitments, Tranche A2 Commitments or Tranche A3 Commitments, and the Incremental Advances thereunder shall be made on terms and conditions agreed to by the Borrower and the applicable Incremental Lenders. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.18 unless on the date of such notice effectiveness (unless otherwise agreed among the Incremental Lenders and whichthe Borrower):
(i) subject to Section 1.03(h)(ii), the representations and warranties set forth in Article IV are correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) on and as of such date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in any eventwhich case it was correct in all material respects (except those representations and warranties qualified by materiality, must which shall be on or prior to the Maturity Date)true and correct) as of such earlier date, and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after (acting at the date direction of the Administrative Agent’s notice, either agree applicable Incremental Lenders) shall have received a certificate to increase its Revolving Credit Commitment that effect dated such date and executed by all or a portion an authorized officer of the offered amount Borrower;
(each Lender so agreeing being an “Increasing Lender”ii) subject to Section 1.03(h)(i), no Event of Default or decline Potential Event of Default shall have occurred and be continuing or would exist after giving effect to increase its Revolving Credit Commitment such Incremental Commitments or at the time of the making of such Incremental Advances; and
(and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitmentiii) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered received such noticelegal opinions, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or board resolutions and other entities closing certificates and documentation (any such bank or other entity being called an “Augmenting Lender”), including opinions of counsel (which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ibe in-house counsel)) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersrequest.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure thatthat all Incremental Advances that are to be part of an outstanding Term Loan A Facility, after giving when originally made, are included in each Borrowing of outstanding Advances of such Term Loan A Facility on a pro rata basis.
(e) Notwithstanding the terms of Section 9.01, any Incremental Assumption Agreement may, without the consent of any other Lenders, effect such amendments to any increase this Agreement and the other Loan Documents as may be necessary or appropriate, in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion reasonable opinion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) to implement the Administrative Agent provisions of this Section, a copy of which shall have received (with sufficient copies for be made available to each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedLender.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time on up to timetwo (2) occasions, request that incremental increases in the Total Maximum Revolving Credit Commitment (and, Amount in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $25,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Revolving Commitments, in their sole discretion; provided, that each additional Lender shall be subject to the approval of the Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the requested increase in the Total Maximum Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) andAmount being requested, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which$10,000,000, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment date on which such incremental increase in the Maximum Revolving Credit Amount is to become effective (the "Increased Amount Date"). The Borrowers shall be responsible for all reasonable, out of any Issuing Bank shall not be increased pocket, fees and expenses in connection with such increase, and, to the extent agreed in writing by the Borrowers pursuant to this Section 2.23 without 2.18(b), syndication expenses and fees paid to Lenders providing the prior written consent of such Issuing Bank. additional Revolving Commitments.
(b) The Borrower Borrowers and each Augmenting new Lender shall execute all and deliver to the Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any the commitment of such new increase in the Maximum Revolving Credit Commitment may Amount. Each such documentation shall specify the terms of the applicable incremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be made in an amount which is less than Revolving Commitments with the increase requested by same terms as the Borrower if the Borrower is unable Revolving Commitments (including as to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) pricing and maturity). Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any and all actions as may such documentation, this Agreement shall be reasonably amended to the extent (but only to the extent) necessary to ensure that, after giving effect to any increase in reflect the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion existence and terms of the Administrative Agent incremental Revolving Commitments evidenced thereby (i) by requiring including adjusting the outstanding Revolving Loans to be prepaid with the proceeds of a Commitment Percentages), and new Revolving Credit BorrowingNotes shall be issued and the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Maximum Revolving Credit Amount, (ii) in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by causing Non-Increasing the Borrowers upon any such incremental Revolving Commitments shall be agreed upon by the Agent, the Lenders with incremental Revolving Commitments and the Borrowers at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.18 shall constitute or be deemed to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitment Percentage hereunder.
(c) Notwithstanding the foregoing, no increase in the Total incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, 2.18 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 3.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer duly authorized officer of the BorrowerBorrowers, and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Agent, consistent with those delivered on the Closing Date under Section 3.1 and such additional customary documents and filings as the Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with sufficient copies for each the covenants set forth in Section 7 after giving effect to such incremental Revolving Commitments, the Loans to be made thereunder and the application of the Lendersproceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Credit Advances in respect of incremental Revolving Commitments, when originally made, are included in such customary closing documentation as aggregate Revolving Credit Advance of outstanding Revolving Credit Advances on a pro rata basis. The Borrowers agree that Section 2.18 shall apply to any conversion of any Loan bearing interest at the Administrative Agent shall have Applicable LIBOR Rate to a Loan bearing interest at the Applicable Base Rate reasonably requestedrequired by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Term Commitments and/or Incremental Revolving Credit Commitment (andCommitments, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Term Loan Amount at such timeor the Incremental Revolving Loan Amount, as applicable, from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, which may include any existing Lender; provided that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of an Incremental Revolving Credit Lender, the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the requested increase in the Total Incremental Term Commitments and/or Incremental Revolving Credit Commitment Commitments being requested (which shall be in minimum increments integral multiples of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000 or in an amount equal to the remaining Incremental Commitment Term Loan Amount or the Incremental Revolving Loan Amount, as applicable), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (which shall not be not less than 10 Business Days nor more than 60 days after the date of such notice notice) and which(iii) in the case of Incremental Term Commitments, in whether such Incremental Term Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). For the avoidance of doubt, (x) no Lender shall have any event, must be on obligation to make an Incremental Term Loan or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its assume an Incremental Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and (y) no approval from the Administrative Agent given not more than 10 days after or the date of Lenders shall be required with regard to, and neither the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and Agent nor any Lender that does not deliver such a notice within such period shall have the right to object to, challenge or obstruct, any request by the Borrower to the Administrative Agent to arrange for the making of 10 days shall be deemed to have declined to increase its any Incremental Term Loan or Incremental Revolving Credit Commitment.
(b) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute all and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or an Incremental Revolving Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Term Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each such agreement shall specify the terms of the Incremental Term Loans and/or its status Incremental Revolving Credit Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than (A) the final maturity date of any other Class of Term Loans and (B) if the initial yield (determined as provided below) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, the date falling six months after the final maturity date of each such adversely affected Class; (ii) the average life to maturity of any Other Term Loans shall be no shorter than (A) the average life to maturity of any other Class of Term Loans and (B) if the initial yield (determined as provided below) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, six months longer than the average life to maturity of each such adversely affected Class; and (iii) if the initial yield on any Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate applicable to the Other Term Loans and (B) if the Other Term Loans are initially made at a discount or the lenders making the same receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Other Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage for Eurodollar Term Loans of any Class, then the Applicable Percentage for each adversely affected Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Lender hereunderAssumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitment or Incremental Revolving Credit Commitment evidenced thereby and any increase to the Applicable Percentages required by the foregoing provisions of this Section 2.24(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Incremental Term Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, 2.24 unless (i) on or before the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders or Incremental Revolving Credit Lenders, as the case may be) legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under Section 4.02 and (iii) in the case of an Incremental Term Commitment the Borrower would be in Pro Forma Compliance after giving effect to such customary closing documentation Incremental Term Commitment and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall have apply to any conversion of Eurodollar Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.”
(e) Section 3.23
Appears in 1 contract
Incremental Commitments. (ai) The Borrower may, may by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) request, from time to timetime after the Closing Date (a) the extension of one or more new term loan commitments or one or more increases in any existing incremental term loan commitments (any such new or increased incremental term loan commitments, request that an “Incremental Term Commitment”) and (b) the Total extension of one or more new Revolving Credit Commitment Commitments or one or more increases in the existing Revolving Credit Commitments (andany such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in connection therewith, the L/C Commitmentan aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) be increased by an amount not to exceed $150,000,000 (provided that any amount of Incremental Commitments extended pursuant to the terms of this Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis). Each Incremental Commitment Amount at shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such timelesser amount and/or multiples as may be agreed by the Borrower and the Administrative Agent). Such Each notice delivered pursuant to this Section 3A.1 shall set forth specify (I) the amount of date (the requested increase in “Increase Effective Date”) on which the Total Revolving Credit Commitment (Borrower proposes that the proposed Incremental Commitments shall be effective, which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of in which such notice and which, in any event, must be on or prior is delivered to the Maturity DateAdministrative Agent (unless otherwise consented to by the Administrative Agent in its discretion), and shall offer each Revolving Credit Lender (II) the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage total of the proposed increased amount. Each Revolving Credit Lender shall, Incremental Commitments requested by notice to the Borrower and (III) the Administrative Agent given not more than 10 days after the date identity of the Administrative Agent’s noticebanks, either agree financial institutions and other entities to increase its Revolving Credit Commitment by whom the Borrower proposes that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the offered amount (each Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any proposed new Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such shall enter into a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks joinder or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, agreement in form and substance reasonably satisfactory to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank its counsel (which shall not be unreasonably withheld) such additional Eligible Assignees becoming Lenders and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in existing Lenders providing an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange forIncremental Commitment, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23collectively, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty“Incremental Lenders”).
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy to timeeach of the Lenders), request that the Total (i) Incremental Revolving Credit Commitment Commitments and/or (andii) Incremental Term Commitments be established, in connection therewith, the L/C Commitment) be increased by each case in an amount not to less than $25,000,000; provided that the aggregate amount of all Incremental Commitments established hereunder during the term of this Agreement shall not exceed the Incremental Commitment Amount at such time$200,000,000. Such notice shall set forth (i) the amount of the requested increase in Incremental Revolving Commitments or the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) andTerm Commitments, if as applicable, the L/C Commitment, being requested and (ii) the date on which such increase is Incremental Revolving Commitments or Incremental Term Commitments, as applicable, are requested to become effective (which shall be not less fewer than 10 Business Days nor days or more than 60 30 days after the date of such notice and which, in any event, must or such other date as shall be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment mutually agreed by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after and the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment Company). Incremental Commitments may be provided by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities financial institutions identified by the Company; provided that (A) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such bank Incremental Revolving Commitment or other entity being called Incremental Term Commitment and (B) any Person that the Company proposes to become an “Augmenting Lender”), which may include any Incremental Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal if such Person is not already a Lender hereunder, shall be subject to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent approval of the Administrative Agent and and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank (which approval shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank). The Borrower Company and each Augmenting Incremental Lender shall execute all and deliver an Incremental Commitment Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment of such Incremental Lender and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each The terms and conditions of any Incremental Revolving Commitment and loans and other extensions of credit to be made thereunder shall be identical to those of the parties hereto hereby agrees Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Commitment Agreement, identical to those of the Term Commitments and the Term Loans; provided that (i) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans and (ii) no Incremental Term Loan shall mature prior to the Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Commitment Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) On the effective date of any Incremental Revolving Commitments (the “Incremental Revolving Commitment Effective Date”), (i) the aggregate principal amount of the Revolving Loans outstanding (the “Initial Loans”) immediately prior to giving effect to such Incremental Revolving Commitment Effective Date shall be deemed to be paid, (ii) each Incremental Revolving Lender that shall have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent may take any and all actions as may be reasonably necessary in same day funds an amount equal to ensure that, the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Initial Loans, (iii) each Incremental Revolving Lender that shall not have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Incremental Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender that is not an Incremental Revolving Lender the portion of such funds that is equal to the excess of (A) the product of (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Initial Loans, over (B) the product of (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Incremental Revolving Commitments, the Company shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Incremental Revolving Commitments) and (vii) the Company shall pay each Revolving Lender any increase and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan and EURIBOR Loan shall be subject to indemnification by the Total Company pursuant to the provisions of Section 2.15 if the Incremental Revolving Credit Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result. In the case of any Incremental Revolving Commitments that have become effective at a time when Loans denominated in both Euro and US Dollars shall be outstanding, the amounts payable by the Revolving Lenders pursuant to this paragraph shall be paid in Euro and US Dollars in proportion to the principal amounts of the Euro and US Dollar denominated Revolving Loans outstanding on the Incremental Revolving Commitment Effective Date.
(d) Incremental Commitments established pursuant to this Section 2.23, shall become effective on the outstanding Revolving Loans (if any) are held date specified in the notice delivered by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at Company pursuant to the discretion second sentence of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (ba) shall be subject to Section 2.16, but otherwise without premium or penaltyabove.
(ce) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment Incremental Commitments shall become effective under this Section 2.23 unless, (i) on the date of such increaseeffectiveness thereof, the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.02 shall be satisfied (without giving effect to the phrase “As of the date hereof,” in Section 3.06 or 3.07(b)) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer the chief financial officer of the Borrower, Company and (ii) the Administrative Agent shall have received documents consistent with those delivered under clauses (with sufficient copies for each b) and (c) of Section 4.01 as to the corporate power and authority of the Company to borrow hereunder after giving effect to such Incremental Commitment. Each Incremental Commitment Agreement may, without the consent of any Lender other than the applicable Incremental Lenders, effect, by amendment or amendment and restatement, such mechanical amendments (which shall not include amendments to or waivers under Articles V, VI or VII) to this Agreement and the other Loan Documents (including provisions hereof or thereof that would otherwise require the consent of all Lenders) as may be necessary or appropriate, in the opinion of the Administrative Agent, to provide for the applicable Incremental Commitments and the loans and other extensions of credit thereunder and otherwise to give effect to the provisions of this Section, including any amendment necessary to treat the applicable Incremental Term Commitments and Incremental Term Loans as a new “Class” of commitments and loans hereunder; provided that no such customary closing documentation Incremental Commitment Agreement shall effect any amendment or waiver referred to in Section 9.02(b)(2)(i), (ii) or (iii), or any other amendment or waiver that by the terms of this Agreement requires the consent of each Lender affected thereby (except to the extent each required consent shall have been obtained).
(f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of and benefits accruing to, and bound by all agreements, acknowledgements and other obligations of, a Lender (or a Lender in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Commitment Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Commitment Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent shall have reasonably requestedof any notice from the Company referred to in Section 2.09(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof (including each amendment effected pursuant to an Incremental Commitment Agreement) and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Restatement Date to timethe Extension Effective Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $15,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $15,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lenderassistance of Borrowers, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal arrange a syndicate of Lenders willing to hold the unsubscribed amount; provided that, notwithstanding the foregoing, requested incremental Commitments.
(ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower Borrowers and each Augmenting incremental Lender shall execute all and deliver to Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as the Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby, and new Notes shall be issued and Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by Borrowers upon any such incremental Commitments shall be agreed upon by Administrative Agent, the Lenders with incremental Commitments and Borrowers at the time of such increase. Nothing in this Section 2.20 shall constitute or be deemed to constitute an agreement by any Lender to increase its Revolving Credit Commitment and/or its status as a Revolving Credit Lender Commitments hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(bc) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.02 shall be satisfied and Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, (ii) Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation consistent with those delivered on the Original Closing Date under Section 5.01 and such additional customary documents and filings as Administrative Agent may reasonably require, including amendments to Mortgages and date downs to, and incremental increases in the amounts of coverage under, the various Title Policies, and (iii) Borrowers shall be in pro forma compliance with the covenants set forth in Section 8.07 and the Loan to Value Ratio for all of the Collateral Properties, shall be no more than sixty percent (60%), in each case after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, showing such calculations in reasonable detail.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure thatthat all Loans in respect of incremental Commitments, after giving effect when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. Borrowers agree that Section 4.05 shall apply to any increase in the Total Revolving Credit Commitment pursuant conversion of Eurodollar Loans to this Section 2.23, the outstanding Revolving ABR Loans (if any) are held reasonably required by the Revolving Credit Lenders to effect the foregoing.
(e) Without limitation of the foregoing, Borrowers may add additional Collateral Property in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) requirements of Section 4.01 shall be satisfied and 2.21 (including the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer consent of the BorrowerRequired Lenders), and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) obtain an incremental Commitment to finance such customary closing documentation as the Administrative Agent shall have reasonably requestednew Collateral Property.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such timeterms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”). The Borrowers and each Incremental Revolving Lender shall be not less than 10 Business Days nor more than 60 days after the date of such notice execute and which, in any event, must be on or prior deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Commitments evidenced thereby. Any increase such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(a) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Credit Commitment may be made Loans in an amount which is less than the increase requested respect of Incremental Revolving Facility Commitments are secured by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersCollateral ratably with all other Revolving Loans.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions action as may be reasonably necessary to ensure thatall Revolving Loans in respect of Incremental Revolving Facility Commitments, after giving effect to any increase when originally made, are included in the Total Revolving Credit Commitment pursuant to this Section 2.23, the each Borrowing of outstanding Revolving Loans (if any) are held on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of effect the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at the time such timeIncremental Revolving Commitments are established from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 5,000,000 or equal to the remaining Incremental Commitment AmountAmount or such lesser amount approved by the Administrative Agent), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Revolving Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date”), and (iii) that such Incremental Revolving Commitments shall offer each be commitments to make additional Revolving Credit Lender Loans (such additional Revolving Loans, the opportunity to increase its “Incremental Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing LenderFacility Loans”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, same terms as the Revolving Credit Lenders shall have agreed Loans made pursuant to the preceding sentence to increase their Commitments in effect on the Closing Date (the “Initial Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting LenderFacility Loans”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, .
(ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Revolving Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in Each Incremental Assumption Agreement shall specify the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each terms of the parties applicable Incremental Revolving Commitments. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, Borrower and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with one or more Classes of the then existing Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall have apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe Extension Effective Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $15,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such timeincremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Commitments being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $15,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Commitments are requested to become effective (which the “Increased Amount Date”). The Administrative Agent and/or its Affiliates shall be not less than 10 Business Days nor more than 60 days after use commercially reasonable efforts, with the date assistance of such notice Borrowers, to arrange a syndicate of Lenders willing to hold the requested incremental Commitments.
(b) Borrowers and which, in any event, must be on or prior each incremental Lender shall execute and deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status of such incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as a Revolving Credit Lender hereunderthe Commitments (including as to pricing and maturity). Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby, and new Notes shall be issued and Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Commitments and all actions as may be reasonably necessary to ensure that, after giving effect to any increase Borrowers at the time of such increase. Nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.19 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.19 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerBorrowers, and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.01 and such additional customary documents and filings as the Administrative Agent may reasonably require, including amendments to Mortgages and date downs to, and incremental increases in the amounts of coverage under, the various Title Policies, and (iii) Borrowers shall be in pro forma compliance with sufficient copies the covenants set forth in Section 8.07 and the Loan to Value Ratio for each all of the Lenders) Collateral Properties, shall be no more than sixty percent (60%), in each case after giving effect to such customary closing documentation incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, showing such calculations in reasonable detail.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Loans in respect of incremental Commitments, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. Borrowers agree that Section 4.05 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, Incremental Term Loan Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed in the aggregate the Incremental Commitment Amount at from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such timeIncremental Term Loan Commitments in their own discretion; provided, that each Incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested increase in the Total Revolving Credit Commitment and (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amountii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Term Loan Commitments are requested to become effective effective.
(which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”b) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Incremental Term Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Term Loan Commitment and/or its status of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify that from and after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans or Term A-1 Loans, as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment case may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) be.. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary, which includes amending Section 2.10, to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Incremental Term Loan Commitment shall become effective under this Section 2.23 unless, 2.20 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with sufficient copies for each the existing Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment, the Loans to be made thereunder and the application of the Lendersproceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans are in the form of additional Term A Loans or Term A-1 Loans, as applicable, when originally made, and are included in each Borrowing and repayment (including pursuant to Section 2.10(a)(i)) of outstanding Term A Loans or Term A-1 Loans, as applicable, on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such customary closing Extension Offers to extend the maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term A Loan) (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or (y) such other terms as shall be reasonably requestedsatisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be later than the Term A Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be longer than the remaining weighted average life to maturity of the Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.20), (i) the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such Extension and the terms of the Extended Term Loans implemented thereby and (B) a representation by the Borrower in the applicable Incremental Assumption Agreement that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the effective date of such Extension, with the same effect as though made on and as of such date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured on a pari passu basis with the Term A Loans and (vii) no Lender shall be required to consent to any extension of any Loan and/or Commitment (or any portion thereof), which consent shall be in each Lender’s sole discretion.
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Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that additional Revolving Commitments (collectively, “Incremental Commitments”) from the Total Revolving Credit Commitment Lenders (andin the sole discretion of such Lenders) or, if such Lenders have declined to issue the full amount of the requested Incremental Commitments pursuant to the provisions set forth in this clause (a), one or more Eligible Assignees who will become Lenders, in connection therewithan aggregate principal amount of up to $30,000,000 provided that at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof, no Default shall have occurred and be continuing or would result therefrom; provided, further, that (1) each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent, the L/C CommitmentIssuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) and (2) during the term of this Agreement, Incremental Commitments shall only be increased provided on two (2) occasions. To request Incremental Commitments, the Lead Borrower shall first submit a notice to the Administrative Agent (to be promptly distributed by an amount not the Administrative Agent to exceed the Incremental Commitment Amount at such time. Such notice shall set Lenders) setting forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 2,500,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment10,000,000), and (ii) the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 ten (10) Business Days nor more than 60 sixty (60) calendar days after the date of such notice and whichnotice, in unless otherwise agreed to by the Administrative Agent). Each Lender shall have ten (10) Business Days to notify the Administrative Agent of up to what amount (if any) of Incremental Commitments it would be willing to provide (including any event, must amounts it would be on or prior willing to provide above the Maturity Date), and shall offer each Revolving Credit Lender portion of the opportunity Incremental Commitments that is proportional to increase its Revolving Credit Commitment by its Pro Rata Applicable Percentage of the proposed increased amountRevolving Commitments) (provided, that any Lender may elect to provide such Incremental Commitments through one or more Affiliates and Approved Funds of such Lender, subject to, if such Affiliates or Approved Funds are not already Lenders hereunder, the approval of the Administrative Agent, the L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed)) (provided, further, that a failure by a Lender to provide such a notice to the Administrative Agent within such ten (10) Business Day period shall be deemed to mean that such Lender does not agree to provide Incremental Commitments). Each Revolving Credit Promptly (and in any event within one (1) Business Day) after such ten (10) Business Day period (or earlier, in the Administrative Agent’s discretion, if responses from all Lenders have been received by the Administrative Agent), the Administrative Agent shall notify the Lead Borrower of the aggregate amount of Incremental Commitments that the Lenders have agreed to provide (capped at the maximum amount of Incremental Commitments requested by the Lead Borrower). If there is any shortfall between the amount of Incremental Commitments requested by the Lead Borrower and the aggregate amount of Incremental Commitments the Lenders agreed to provide, the Lead Borrower may (x) reduce the amount of Incremental Commitments requested by it by notice to the Administrative Agent (subject to the minimum amount and minimum increments set forth above) and/or (y) after allocating additional Incremental Commitments to those Lenders who have offered to provide such additional amounts pursuant to the preceding sentence, seek out one or more Eligible Assignees (or one or more existing Lenders) to provide the shortfall amount of such Incremental Commitments and notify the Administrative Agent thereof (provided, that the approval of the Administrative Agent, the L/C Issuers and the Swingline Lender shall(which approvals shall not be unreasonably withheld, conditioned or delayed) shall be required with respect to such Eligible Assignees that are not existing Lenders) (provided, further, that the Lead Borrower may, by notice to the Borrower Administrative Agent, extend the proposed effective date for such Incremental Commitments as may be reasonably appropriate to accommodate the Lead Borrower’s search for, and the Administrative Agent given not Agent’s, L/C Issuers’ and Swingline Lender’s approval of, providers of the Incremental Commitments). To the extent that more than 10 days after one Lender has agreed to provide Incremental Commitments and the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver aggregate Incremental Commitments such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to provide exceeds the preceding sentence to increase their Revolving Credit amount of Incremental Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Lead Borrower, each such Lender shall provide Incremental Commitments in proportion to its Applicable Percentage relative to the Borrower may arrange for one or more banks or other entities Applicable Percentages of all such Lenders that have agreed to provide Incremental Commitments; provided, that if any Lender has not agreed to provide Incremental Commitments in an amount at least equal to such pro rata share (any such bank or other entity being called an “Augmenting Lenderunderproviding lender”), which may include any Lender, the other Lenders agreeing to extend Revolving Credit Commitments or increase their existing Revolving Credit provide Incremental Commitments in an aggregate amount equal in excess of their respective Applicable Percentages (“overproviding lenders”) shall provide the Incremental Commitments that would otherwise be provided by the underproviding lender in proportion to their respective Applicable Percentages relative to the unsubscribed amount; provided thatApplicable Percentages of all overproviding lenders.
(b) The Administrative Agent, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Borrowers and each Lender and no Revolving Credit Lender’s Revolving Credit or other Person providing an Incremental Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent enter into an Incremental Assumption Agreement and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status the Incremental Commitments, in each case on terms and conditions consistent with this Section 2.12. The Administrative Agent shall promptly notify each Lender as a Revolving Credit Lender hereunderto the effectiveness of each Incremental Assumption Agreement. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended, without requiring the consent of any Person other than the Administrative Agent, the Borrowers and each Lender or other Person providing an Incremental Commitment pursuant to such Incremental Assumption Agreement, to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Lead Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld or delayed) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding The terms of each Incremental Commitment shall be reasonably satisfactory to the foregoing, no increase Administrative Agent and in all events:
(i) any Revolving Loans under any Incremental Commitments shall rank pari passu in right of payment and of security with the Total existing Revolving Credit Commitment Loans; and
(ii) all material terms of any Incremental Commitments and Revolving Loans under such Incremental Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Commitments shall become effective under this Section 2.23 2.12 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 3.02 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial an Authorized Officer of the Lead Borrower, ; and (ii) the Administrative Agent shall have received closing certificates, opinions of counsel and other customary documentation reasonably requested by the Administrative Agent.
(with sufficient copies for each e) Each of the Lenders) such customary closing documentation parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, following the establishment of any Incremental Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Revolving Borrowing to be converted into an ABR Borrowing on the date of each Incremental Commitment, or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 2.17 (it being understood that, the Administrative Agent shall have reasonably requestedconsult with the Lead Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
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Incremental Commitments. At any time following the earlier of (ax) The completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may, may by written notice to the Administrative Agent from time elect to timerequest an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the Total “Incremental Term Facility Commitments” and together with the Incremental Revolving Credit Commitment (andFacility Commitments, if any, the “Incremental Commitments”), in connection therewithan aggregate principal amount, the L/C Commitment) be increased by an amount collectively, not to exceed the greater of (x) U.S. $50.0 million and (y) U.S. $100.0 million if on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Commitment Amount at Term Loans or such timeIncremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in each case, a lesser amount in integral multiples of U.S. $5.0 million. Such notice shall set forth specify the amount of date (an “Increased Amount Date”) on which the requested increase Borrower proposes that the Incremental Commitments, and in the Total Revolving Credit Commitment (case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amountits sole discretion) and, if applicable, the L/C Commitment, and after the date on which such increase notice is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior delivered to the Maturity Date), and Administrative Agent. The Borrower shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and notify the Administrative Agent given in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not more than 10 days after be the date Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent’s notice, either agree and in the case of any Person committing to increase its any Incremental Revolving Credit Commitment by Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the offered amount Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (each Lender so agreeing being an “Increasing LenderIncremental Term Loans”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, made on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amountIncreased Amount Date; provided that, notwithstanding the foregoing, that (i) no person Default or Event of Default shall become exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Term Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Subsidiaries shall be in compliance, on a Revolving Credit Lender Pro Forma Basis after giving effect to such Incremental Commitments and no Revolving Credit Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender’s Revolving Credit Commitment , as applicable, and each shall increase pursuant be recorded in the register, each of which shall be reasonably satisfactory to this Section 2.23 without the prior written consent of the Administrative Agent and subject to the Issuing Bank requirements set forth in Section 2.17(e); (which v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be unreasonably withheld) permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans and (iivii) if the Applicable Margin for any Incremental Term Loan exceeds the then applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of (A) such Applicable Margin for the Incremental Term Loans over (B) the L/C Applicable Margin for the Revolving Facility plus 50 basis points being the relevant “Margin Differential”), then each Applicable Margin for the Revolving Facility for each adversely affected existing Revolving Facility Commitment of any Issuing Bank shall not automatically be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if Margin Differential effective upon the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) making of the Incremental Term Loan. Each of the parties hereto hereby agrees that that, upon the Administrative Agent may take effectiveness of any and all actions joinder agreements in connection with any Incremental Commitments as may described in the preceding sentence, this Agreement shall be reasonably deemed amended to the extent (but only to the extent) necessary to ensure that, after giving effect to any increase in reflect the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion existence and terms of the Administrative Agent (i) by requiring Incremental Commitments and the outstanding Revolving Incremental Term Loans to be prepaid with the proceeds of a new Revolving Credit Borrowingevidenced thereby, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent, the Collateral Agent shall have received a certificate and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender that effect dated is not providing such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requestedIncremental Commitments or Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The a).The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request during the Revolving Availability Period, (i) the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed of all the Incremental Commitment Amount at Commitments established hereunder during the term of this Agreement shall not exceed $100,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment AmountA) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be not less than 10 Business Days nor more than 60 days (or such shorter period as may be agreed to by the Administrative Agent) after the date of on which such notice is delivered to the Administrative Agent and which(B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (which shall not be less than $25,000,000). Incremental Commitments may be provided by any Lender or by one or more other financial institutions identified by the Borrower; provided, that (x) any Lender requested by the Borrower to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any eventPerson becoming an Incremental Lender, if such Person is not already a Lender, must be on or prior to the Maturity Date), an Eligible Assignee and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment must be approved by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s noticeand, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total case of any proposed Incremental Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall such approval not to be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, withheld or chooses not to arrange for, Augmenting Lendersdelayed).
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (a) The Borrower mayshall have the right, at any time and from time to time after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders increase their respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by written adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender” and, together with each Increasing Lender, the “Incremental Lenders”), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately after giving effect to any Incremental Commitment, (y) the aggregate Commitments plus Incremental Commitments shall not exceed $350,000,000 and (z) the aggregate of all Incremental Commitments effected shall not exceed $100,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof) the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (E) the Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent from time ten (10) Business Days before making a request to time, request any Person that the Total Revolving Credit Commitment (and, is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in connection therewith, the L/C Commitment) be increased by an amount not to exceed the such requested Incremental Commitment Amount at such time. Such if it provides written notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment its election to participate within ten (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount10) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s receipt of such notice, either agree to increase its Revolving Credit Commitment by all or a portion . Such notice from the Borrower shall specify the requested amount of the offered amount (each Incremental Commitment. No Lender so agreeing being shall have any obligation to become an “Increasing Lender”) or decline . Any fees paid by the Borrower for an Incremental Commitment to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing an Incremental Lender”). In the event that, on the 10th day after the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, shall have delivered be for their own account and shall be in an amount, if any, mutually agreed upon by each such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.20 shall be construed to obligate the Borrower may arrange to pay any fee for one an Incremental Commitment to an Incremental Lender, the Administrative Agent or more banks or either Arranger.
(b) Revolving Commitment Increases, if any, shall have the same terms (other entities than upfront fees) as the existing Commitments and be effected as set forth in Section 2.20(f). Term Loan Commitments, if any, shall have terms and conditions acceptable to the Administrative Agent, the Incremental Lenders making such Term Loan Commitments and the Borrower (any such bank or other entity being called terms and conditions to be set forth in an “Augmenting Lender”amendment to this Agreement effective as of the Incremental Commitment Effective Date), which may include any Lender, provided that the Term Loans made pursuant to extend Revolving Credit such Term Loan Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Credit Loans
(c) Each Additional Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of must be approved in writing by the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing BankLender. The Borrower and each Augmenting Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent shall and the Borrower may reasonably specify require including without limitation the documentation for the amendment referred to in Section 2.20(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence its Revolving Credit the Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase adjustments referred to in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersSection 2.20(f).
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) If Incremental Commitments are held by the Revolving Credit Lenders provided in accordance with their new Pro Rata Percentages. This may be accomplished at this Section 2.20, the discretion of Borrower (in consultation with the Administrative Agent Agent) and each Incremental Lender shall agree upon the effective date (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) “Incremental Commitment Effective Date,” which shall be subject a Business Day not less than thirty (30) days prior to Section 2.16the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, but otherwise without premium no Lender other than an Incremental Lender must execute any joinder or penaltyamendment in connection with an Incremental Commitment.
(ce) Notwithstanding anything set forth in this Section 2.20 to the foregoingcontrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no increase in the Total Revolving Credit Incremental Commitment shall become effective under this Section 2.23 unless, (ibe effective) on the date of such increase, unless the conditions set forth in paragraphs Section 2.20(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(bi) and (c) of Section 4.01 shall be satisfied and the The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.20(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(c);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to that effect dated and attaching the resolutions adopted by the board of directors (or similar governing body) of such date and executed by party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (iiz) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent shall have received (with sufficient copies for each of and the Lenders) , together with such customary closing documentation other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on two occasions during the period from time the Closing Date to timethe date five Business Days prior to the Maturity Date, request that the Total Revolving Credit Commitment (and, incremental Commitments in connection therewith, the L/C Commitment) be increased by an amount not less than $25,000,000 per request and not more than $50,000,000 in the aggregate (the “Incremental Limit”) from one or more additional Lenders (which may include any existing Lender, each, a “New Term Loan Lender”) willing to exceed provide such incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the Incremental Commitment Amount at approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such timeNew Term Loan Lender is a Lender or an Affiliate of a Lender. Such notice shall set forth (i) the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitmentincremental Commitments being requested, and (ii) the date on which such increase is incremental Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event thatOn any Increased Amount Date on which any such incremental Commitments are effective, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant subject to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than satisfaction of the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoingforegoing terms and conditions, (i) no person each New Term Loan Lender shall become make a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant Loan to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank Borrowers (which shall not be unreasonably withhelda “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment and the L/C Commitment of any Issuing Bank shall not be increased New Term Loans made pursuant to this Section 2.23 without the prior written consent of such Issuing Bankthereto. The Borrower terms and provisions of the New Term Loans and the incremental Commitments shall be identical to the existing Loans.
(b) The Borrowers and each Augmenting New Term Loan Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the incremental Commitment and/or its status as a Revolving Credit Lender hereunderof such New Term Loan Lender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Credit Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrowers shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent may take any Agent, the New Term Loan Lenders and all actions as may be reasonably necessary to ensure thatthe Borrowers at the time of such increase. Notwithstanding the foregoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.7 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitment hereunder.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit incremental Commitment shall become effective under this Section 2.23 unless, 2.7 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer financial officer of the BorrowerBRT, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall have be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all New Term Loans, when originally made, are included in each borrowing of outstanding Loans on a pro rata basis.
Appears in 1 contract
Sources: Term Loan Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (ai) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy to timeeach of the Lenders), request that the Total (i) Incremental Revolving Credit Commitment Commitments and/or
(andii) Incremental Term Commitments be established, in connection therewith, the L/C Commitment) be increased each case by an amount not to less than $25,000,000; provided that the aggregate amount of all Incremental Commitments established hereunder during the term of this Agreement shall not exceed the Incremental Commitment Amount at such time$200,000,000. Such notice shall set forth (i) the amount of the requested increase in Incremental Revolving Commitments or the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) andTerm Commitments, if as applicable, the L/C Commitment, being requested and (ii) the date on which such increase is Incremental Revolving Commitments or Incremental Term Commitments, as applicable, are requested to become effective (which shall be not less fewer than 10 Business Days nor days or more than 60 30 days after the date of such notice and which, in any event, must or such other date as shall be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment mutually agreed by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after and the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment Company). Incremental Commitments may be provided by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities financial institutions identified by the Company; provided that (A) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such bank Incremental Revolving Commitment or other entity being called Incremental Term Commitment and (B) any Person that the Company proposes to become an “Augmenting Lender”), which may include any Incremental Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal if such Person is not already a Lender hereunder, shall be subject to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent approval of the Administrative Agent and and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and each Swingline Lender (which approval shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank). The Borrower Company and each Augmenting Incremental Lender shall execute all and deliver an Incremental Commitment Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit the Incremental Commitment of such Incremental Lender and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the Total Revolving Credit Commitment (andaggregate, in connection therewith, cumulative amount of all Incremental Commitments established pursuant to this Section 2.22 after the L/C Commitment) be increased by an amount Restatement Date shall not to exceed the Incremental Commitment Amount at $50,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amounti) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days nor (or such shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent, (ii) the amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Agent).
(a) The terms and conditions of any Incremental Commitment and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Loans and other extensions of credit made hereunder.
(b) The Incremental Commitments shall be effected pursuant to one or more than 60 days Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower and each Subsidiary set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of the date of such notice Borrowing except with respect to representations and whichwarranties expressly made only as of an earlier date, in any eventwhich case such representations and warranties were so true and correct on and as of such earlier date, must (iii) after giving effect to and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.11 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day the most recent four consecutive fiscal quarter period of the Borrower ending prior to the Maturity Date)date of such effectiveness, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions under this Section 2.22 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Agent, to give effect to the provisions of this Section 2.22.
(c) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall offer each Revolving Credit be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of such Incremental Lender and (B) the aggregate amount of the proposed Lenders’ Commitments shall be increased amountby the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. Each Revolving For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender shallholding such Commitment, by notice to the Borrower and the Administrative Agent given not more than 10 days after Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(d) On the date of the Administrative Agent’s noticeeffectiveness of any Incremental Commitments, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined assigned to increase its Revolving Credit Commitment) (each Incremental Lender so declining or being holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any purchased from each Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided thatprincipal amount thereof (together with accrued and unpaid interest), notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase interests in the Revolving Credit Commitment may Loans outstanding on such date as shall be made necessary in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure order that, after giving effect to all such assignments and purchases, such Loans will be held by all the Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are SOFR Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any increase in the Total Revolving Credit Commitment such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to this Section 2.232.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans (if any) of other Lenders so that, after giving effect thereto, all Loans that are SOFR Loans are held by the Revolving Credit Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Lender will make ABR Loans by transferring funds to the Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Lenders in accordance with their new Pro Rata then-current Applicable Percentages. This may be accomplished at On the discretion date of the Administrative Agent (i) by requiring effectiveness of such Incremental Commitments, the outstanding Revolving Loans Borrower will pay to be prepaid with the proceeds of a new Revolving Credit BorrowingAgent, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination for the accounts of the foregoingLenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Loans of the Borrower being prepaid. Any prepayment or assignment described The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this paragraph (b) Agreement shall be subject not apply to Section 2.16, but otherwise without premium or penaltythe transactions effected pursuant to the immediately preceding sentence.
(ce) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative The Agent shall have received a certificate notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to that effect dated such date in Section 2.22 and executed by a Financial Officer of the Borrowereffectiveness of any Incremental Commitments, and (ii) in each case advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have reasonably requestedbeen made pursuant to Section 2.22.
Appears in 1 contract
Sources: Five Year Revolving Credit Agreement (Artisan Partners Asset Management Inc.)
Incremental Commitments. (a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request, the Borrower may, by written notice to the Administrative Agent may request at any time and from time to time after the Effective Date and prior to the Commitment Termination Date, that the Lender provide an Incremental Commitment and, subject to the applicable terms and conditions contained in this Agreement, make Advances pursuant thereto; it being understood and agreed, however, that (i) the Lender shall not be obligated to provide an Incremental Commitment as a result of any such request by the Borrower, and until such time, request that if any, as the Total Revolving Credit Lender has agreed in its sole discretion to provide an Incremental Commitment (and, and executed and delivered an Incremental Commitment Agreement in connection therewithrespect thereof as provided in Section 2.14(b), the L/C Commitment) Lender shall not be increased by an amount not obligated to exceed fund any Advances in excess of the Commitment as in effect prior to giving effect to such Incremental Commitment Amount at such time. Such notice shall set forth the amount provided pursuant to Section 2.14(b) below, (ii) each provision of the requested increase in the Total Revolving Credit an Incremental Commitment (which on a given date pursuant to Section 2.14(b) below shall be in minimum increments of $5,000,000 and a minimum amount of at least $10,000,000 or equal 25,000,000 and in integral multiples of $25,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to the remaining Incremental Commitment AmountSection 2.14(b) andbelow, if applicable, the L/C Commitmentshall not exceed $250,000,000, and the date on which such increase is requested (v) all Advances made pursuant to become effective Incremental Commitments (which and all interest, fees and other amounts payable thereon) shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower obligations under this Agreement and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersapplicable Loan Documents.
(b) Each At the time of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit provision of an Incremental Commitment pursuant to this Section 2.232.14, the outstanding Revolving Loans (if any) are held by Borrower and the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid Lender shall execute and deliver an Incremental Commitment Agreement, with the proceeds effectiveness of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders such Incremental Commitment to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) occur on the date (the "Incremental Commitment Date") set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such increaseeffectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Lender, (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in paragraphs (bthis Section 2.14(b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerbeen satisfied, and (iiz) the Administrative Agent all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have received been satisfied. The Lender's Commitment under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Commitment on the Incremental Commitment Date for such Incremental Commitment."
(with sufficient copies for f) Exhibit E (Form of Mortgage) to the Credit Agreement is hereby replaced by the form of Exhibit E attached hereto.
(g) The Credit Agreement is amended by adding Exhibit L attached hereto as an exhibit thereto.
(h) Each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like import, and each reference to the "Credit Agreement" in any of the Lendersother Loan Documents, shall mean and refer to the Credit Agreement as amended hereby.
(i) such customary closing documentation Each reference in any of the Loan Documents to "Note" shall mean and refer to the Note executed and delivered by the Borrower pursuant to Section 3.01(a)(viii) of the Credit Agreement and any other Note executed and delivered by the Borrower hereafter pursuant to Section 2.14 of the Credit Agreement as the Administrative Agent shall have reasonably requestedamended by this Amendatory Agreement.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe eighteen (18) month anniversary of the Closing Date, request that the Total incremental Revolving Credit Commitment (and, Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at aggregate amount of $75,000,000 from one or more additional Revolving Lenders (which may include any existing Lender) willing to provide such timeincremental Revolving Commitments in their own discretion; provided, that each incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the requested increase incremental Revolving Commitments being requested, (ii) the aggregate amount of all incremental Revolving Commitments, which when taken together with all other incremental Revolving Commitments, shall not exceed $75,000,000 in the Total Revolving Credit Commitment aggregate (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining “Incremental Commitment Amount) and, if applicable, the L/C CommitmentLimit”), and (iii) the date on which such increase is incremental Revolving Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the The Administrative Agent and/or its Affiliates shall have delivered such noticeuse commercially reasonable efforts, with the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the Borrower may arrange for one or more banks or other entities requested incremental Revolving Commitments.
(any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (ib) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting incremental Revolving Lender shall execute all and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence its the incremental Revolving Credit Commitment and/or its status of such incremental Revolving Lender. Each such documentation shall specify the terms of the applicable incremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable Commitments (including as to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) pricing and maturity). Each of the parties hereto hereby agrees that that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Revolving Commitments evidenced thereby (including adjusting the Revolving Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Revolving Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by the Borrower upon any such incremental Revolving Commitments shall be agreed upon by the Administrative Agent may take any Agent, the Lenders with incremental Revolving Commitments and all actions as may be reasonably necessary to ensure thatthe Borrower at the time of such increase. Notwithstanding the forgoing, after giving effect to any increase nothing in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may 2.23 shall constitute or be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans deemed to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) constitute an agreement by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject Lender to Section 2.16, but otherwise without premium or penaltyincrease its Commitments hereunder.
(c) Notwithstanding the foregoing, no increase in the Total incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless, unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall have be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Revolving Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably requestednecessary to ensure that all Revolving Loans in respect of incremental Revolving Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Incremental Commitments. (a) The Borrower may, may from time to time by written notice to the Administrative Agent from time elect to time, request that incremental revolving credit commitments (the Total “Incremental Revolving Credit Commitment Commitments”) for the purpose of increasing the aggregate Revolving Credit Commitments; provided that (and, in connection therewith, 1) the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such time. Such notice shall set forth the aggregate amount of all Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $50,000,000 and (2) the requested aggregate amount of each increase in the Total Revolving Credit Commitment Commitments pursuant to this section shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitments shall be effective, which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amountdate not less than ten (10) and, if applicable, the L/C Commitment, and Business Days after the date on which such increase notice is requested delivered to become effective the Administrative Agent, (which ii) what portion, if any, of such Incremental Revolving Credit Commitments shall be not less than 10 Business Days nor more than 60 days after applicable to the date Seasonal Adjustment Amount and (iii) what portion, if any, of such notice and which, in any event, must Incremental Revolving Credit Commitments shall be on or prior applicable to the Maturity Date), and shall offer each Loan Cap Amount (such portions in the aggregate to add up to the aggregate amount of such Incremental Revolving Credit Commitments). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the opportunity Administrative Agent, to increase its provide an Incremental Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount(any such Person, a “New Lender”). Each Revolving Credit Lender shall, by notice Any Person offered or approached to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by provide all or a portion of the offered amount (each Lender so agreeing being any Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an “Increasing Lender”) or decline to increase its Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of the related Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitments and (2) the making of any Lender that does not deliver such a notice within such period Loans or the issuance of 10 days any Letters of Credit pursuant thereto;
(B) all Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Revolving Credit Commitments shall constitute Obligations of the Borrower, shall be deemed secured and guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to have declined to increase its the same terms and conditions as other Revolving Credit CommitmentLoans and Letters of Credit, respectively;
(C) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent shall have delivered such notice, on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall have agreed pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Revolving Credit Commitment shall be entitled to the preceding sentence to increase their same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility, and any Extensions of Credit made in connection with each Incremental Revolving Credit Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit made hereunder;
(E) Incremental Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested shall be effected pursuant to one or more joinder agreements (each a “Joinder Agreement”) executed and delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in form and substance reasonably satisfactory to the parties thereto and may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower may arrange for one a certificate of the chief financial officer or more banks treasurer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Revolving Credit Commitment and (y) the making of any Revolving Credit Loans pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be fully funded); and
(G) the Borrower shall deliver or cause to be delivered any customary legal opinions or other entities documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing the borrowing of Revolving Credit Loans and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any such bank transaction.
(b) The New Lenders shall be included in any determination of the Required Lenders and the New Lenders will not constitute a separate voting class or other entity being called an “Augmenting Lender”), separate tranche of Loans for any purposes under this Agreement.
(c) On any Increased Amount Date on which may include any Lender, to extend Incremental Revolving Credit Commitments or increase their existing Commitment becomes effective, subject to the foregoing terms and conditions, each New Lender with an Incremental Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person Commitment shall become a Revolving Credit Lender and no hereunder with respect to such Incremental Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting LendersCommitment.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment shall become effective under this Section 2.23 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall have reasonably requested.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request that additional Commitments to increase the Total Revolving Credit Commitment Facility Amount (andcollectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders), in connection therewithan aggregate principal amount of up to $10,000,000; provided that at the time Page 106 of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that (1) if any Person proposed to provide such Incremental Commitments is not already a Lender, such Person shall be subject to the L/C Commitmentapproval of the Administrative Agent in its sole discretion and who, upon the establishment of an Incremental Commitment shall, subject to the terms and conditions of this Agreement, become a Lender hereunder, (2) be increased by an amount not to exceed the Borrowers may make only two (2) such requests, and (3) the Incremental Commitment Amount at such timeCommitments shall not be applied to increase either the Term Loan or Term Cap Ex Commitment. Such notice shall set forth (i) the amount of the Incremental Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment5,000,000), and (ii) the date on which such increase is Incremental Commitments are requested to become effective (which shall not be not less than 10 ten (10) Business Days nor more than 60 sixty (60) calendar days after the date of such notice and whichnotice, unless otherwise agreed to by the Administrative Agent). Nothing contained in this Section shall constitute, or otherwise be deemed to be, a commitment on the part of any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage hereunder at any time. Any such increase shall be at the sole discretion of the proposed increased amount. Each Revolving Credit Lender shall, by notice Lender(s) being requested to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being provide an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Incremental Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each The terms of the parties hereto hereby agrees that each Incremental Commitment shall be reasonably satisfactory to the Administrative Agent may take and in any event:
(i) shall rank pari passu in right of payment and of security with the existing Loans; and
(ii) all actions material terms of any Incremental Commitments and the additional Revolving Loans available under such Incremental Commitments as may be reasonably necessary a result of the corresponding increase to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by Facility Amount and the Revolving Credit Lenders in accordance Limit shall be identical to the existing Commitments and Revolving Loans, with their new Pro Rata Percentages. This may an additional closing fee required upon each Incremental Commitment which shall be accomplished calculated at the discretion one percent (1.00%) of the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds amount of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltysuch Incremental Commitment.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit Commitment No additional Commitments shall become effective under this Section 2.23 2.14 unless, (i) on the date of such increaseeffectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 6.3 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Borrower, ; and (ii) the Administrative Agent shall have received closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(with sufficient copies for each d) Each of the Lenders) such customary closing documentation as parties hereto hereby agrees that the Administrative Agent shall have may take any and all action as may be reasonably requestednecessary to ensure that, following the establishment of any additional Commitments, the Total Facility Amount is held by the Lenders in accordance with their new Percentage Shares. This may be accomplished at the discretion of the Administrative Agent by requiring a prepayment and reborrowing of Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such timeterms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that up to (i) $100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) $100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicablewhich shall not exceed the Incremental Amount, the L/C Commitment, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be not less than 10 Business Days nor more than 60 days after requested on a single Increased Amount Date, and (y) the date terms of such notice and whichFILO Commitments, including pricing, shall be set forth in any eventsuch notice, must be on or prior to the Maturity Date)if applicable, and shall offer each be as agreed by the relevant Incremental Revolving Credit Lender Lenders, the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shallBorrowers, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree ).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered an Incremental Assumption Agreement and such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any with the Borrowers’ consent (not to be unreasonably withheld) and all actions as may be reasonably necessary furnished to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23other parties hereto. In addition, the outstanding Borrowers and each Incremental Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) by requiring this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
(c) Incremental European Revolving Commitments shall be prepaid with established pursuant to an amendment to this Agreement signed by the proceeds Company, the other applicable borrowers under such Incremental European Revolving Facility, the Lenders providing such Incremental European Revolving Commitments and the Administrative Agent; provided that (i) the borrowers under any such Incremental European Revolving Facility shall be one or more Restricted Subsidiaries of a new Revolving Credit Borrowingthe Company organized under the laws of the United Kingdom, the Netherlands or Germany, (ii) by causing Non-Increasing Lenders availability under such Incremental European Revolving Facility shall be based on a borrowing base of the assets of the applicable borrowers and, as a condition to assign portions the establishment of their outstanding an Incremental European Revolving Loans Commitment, the Administrative Agent shall have received the results of a reasonably satisfactory field examination and appraisal with respect to Increasing Lenders and Augmenting Lenders or the assets to be included in the borrowing base with respect to such Incremental European Revolving Facility, (iii) by any combination of the foregoing. Any prepayment advances rates with respect to the borrowing base applicable to such Incremental European Revolving Facility shall not exceed the advance rates applicable to the Canadian Borrowing Base or assignment described the U.S. Borrowing Base, (iv) the eligibility requirements with respect to the assets to be included in this paragraph (b) the borrowing base applicable to such Incremental European Revolving Facility shall be subject reasonably acceptable to Section 2.16the Administrative Agent, but (v) the Collateral Agent shall have a valid and perfected, first priority Lien in the assets to be included in the borrowing base for the applicable Incremental European Revolving Facility (or substantially all assets, in the case of borrowers organized in certain jurisdictions as determined by the Collateral Agent or as otherwise without premium agreed between the Company and the Collateral Agent), (vi) any Incremental European Revolving Facility shall be guaranteed by the Loan Parties and secured by the Collateral on a pari passu basis with the Obligations, (vii) as a condition to the establishment of an Incremental European Revolving Commitment, each Lender under such Incremental European Revolving Facility shall have received all documentation and other information about the relevant borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and to the extent such borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have received, to the extent requested, a Beneficial Ownership Certification in relation to such borrower, (viii) this Agreement shall be amended such that any and all thresholds or penaltytriggers based on Combined Availability or Specified Availability shall take into account the availability with respect to the relevant Incremental European Revolving Facility, (ix) any Incremental European Revolving Facility may include letter of credit or swingline facilities as agreed among the Company, the Administrative Agent and the relevant Lenders, and (x) the terms of such Incremental European Revolving Commitments shall otherwise be substantially similar to the terms applicable to the U.S. Revolving Facility including with respect to maturity and pricing.
(cd) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the Company and/or the Canadian Borrower, as applicable, and (ii) the Administrative Agent shall have received (legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with sufficient copies for each those delivered on the Amendment and Restatement Effective Date under Section 4.02 of the LendersUnamended Credit Agreement and such additional documents and filings (including amendments to the Security Documents) such customary closing documentation as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis, except that with respect to FILO Commitments, such actions shall have ensure FILO Loans in an amount equal to the lesser of (x) the aggregate FILO Commitments or (y) the then-current Borrowing Base applicable to the FILO Subfacility are drawn in full prior to any other Revolving Loans being borrowed at any time. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans or BA Equivalent Loans to Canadian Prime Rate Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group Inc)
Incremental Commitments. (a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request during the Revolving Availability Period, (i) the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed of all the Incremental Commitment Amount at Commitments established hereunder during the term of this Agreement shall not exceed $75,000,000. Each such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment specify (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment AmountA) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be not less than 10 Business Days nor more than 60 days (or such shorter period as may be agreed to by the Administrative Agent) after the date of on which such notice is delivered to the Administrative Agent and which(B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (which shall not be less than $25,000,000). Incremental Commitments may be provided by any Lender or by one or more other financial institutions identified by the Borrower; provided, that (x) any Lender requested by the Borrower to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any eventPerson becoming an Incremental Lender, if such Person is not already a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld).
(b) The terms and conditions of any Incremental Revolving Commitments and of the Loans and other extensions of credit to be made thereunder shall be identical to those of the original Commitments and Revolving Loans and other extensions of credit made hereunder, and shall be treated as a single class with such Commitments and Loans, and if the Borrower determines to increase the interest rates or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall only be permitted if the interest rates or fees payable in respect of the original Commitments and Loans and other extensions of credit made hereunder, as applicable, shall be increased to equal such interest rates or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit, as the case may be. Any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be on such terms as the Administrative Agent, the Borrower and the Incremental Term Lenders may agree; provided, that (i) all Incremental Term Loans shall bear interest on the same basis as the Revolving Credit Loans, but with such adjustments to the spreads set forth in the definition of “Applicable Rate” as the Administrative Agent, the Borrower and the Incremental Term Lenders may agree upon; provided, that if the Weighted Average Yield for any Incremental Term Loans shall at any time exceed by more than 0.50% per annum the Weighted Average Yield for Revolving Credit Loans or any other Class of Incremental Term Loans, then the Applicable Rate for Revolving Loans or such other Class of Incremental Term Loans shall automatically be increased to reduce such excess to 0.50% per annum, (ii) Incremental Term Loans may amortize, and may have the benefit of mandatory prepayment events, on terms customary at the time of the establishment thereof for “Tranche A” term loans, but may not mature prior to the Maturity Date)Date and (iii) Incremental Term Loans shall not have the benefit of any representations or warranties, affirmative or negative covenants or Events of Default that do not equally benefit all other Classes of Loans hereunder.
(c) Incremental Commitments shall be established pursuant to one or more Incremental Commitment Agreements executed and shall offer delivered by the Borrower, each Revolving Credit Incremental Lender the opportunity to increase its Revolving Credit providing an Incremental Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after Agent; provided that no Incremental Commitments shall become effective unless such Incremental Commitments amount to at least $25,000,000 in the aggregate and unless on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments, (i) no Default shall have occurred and be continuing, (ii) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, evidence of authority, officer’s certificates and other documents as shall have been requested by the Administrative Agent. Each Incremental Commitment Agreement may, without the consent of any Lender, effect such amendments to, or amend and restate, this Agreement and the other Loan Documents (including provisions hereof or thereof that would otherwise require the consent of all the Lenders) as may be necessary or appropriate, in the opinion of the Administrative Agent’s notice, either agree to increase its Revolving Credit provide for the applicable Incremental Commitments and the Loans and other extensions of credit thereunder and otherwise to give effect to the provisions of this Section; provided that no such Incremental Commitment Agreement shall effect any amendment or waiver referred to in Section 9.02(b)(ii)(A), (B) or (C) without the consent of each Lender affected thereby.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of and benefits accruing to, and bound by all agreements and other obligations of, a Lender (or a Lender in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”.
(e) On the date of effectiveness of any Incremental Revolving Commitments (the “Incremental Revolving Commitment Effective Date”), (i) the aggregate principal amount of the Revolving Loans outstanding immediately prior to such effectiveness (the “Outstanding Borrowings”) shall be deemed to be repaid; (ii) each Incremental Revolving Lender that shall have been a Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Outstanding Borrowings; (iii) each Incremental Revolving Lender that shall not have been a Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the product of (A) such Incremental Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (B) the amount of the Subsequent Borrowings; (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender that is not an Incremental Revolving Lender the portion of such funds that is equal to the offered difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Outstanding Borrowings, and (each Lender so agreeing being an “Increasing B) the product of (1) such Lender”’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) or decline to increase its multiplied by (2) the amount of the Subsequent Borrowings; (v) after the effectiveness of the Incremental Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days Commitments, the Borrower shall be deemed to have declined to increase its Revolving Credit Commitmentmade new Borrowings (the “Subsequent Borrowings”) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate principal amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent aggregate principal amount of the Administrative Agent Outstanding Borrowings and of the Issuing Bank Types and for the Interest Periods specified in a borrowing request delivered in accordance with Section 2.03; (which shall not be unreasonably withheldvi) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify be deemed to evidence hold its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
Applicable Percentage of each Subsequent Borrowing (b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, calculated after giving effect to the Incremental Revolving Commitments); and (vii) the Borrower shall pay to each Lender any increase in and all accrued but unpaid interest on the Total Revolving Credit Commitment Outstanding Borrowings. The deemed payments made pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent clause (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds above in respect of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) each Eurocurrency Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.16, but otherwise without premium or penalty2.15 if the Incremental Revolving Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
(cf) Notwithstanding Subject to the foregoing, no increase terms and conditions set forth herein and in the Total Revolving Credit applicable Incremental Commitment Agreement, each Lender holding an Incremental Term Commitment shall become effective under this Section 2.23 unless, (i) make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date of specified in such increase, Incremental Commitment Agreement.
(g) The Administrative Agent shall notify the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and Lenders promptly upon receipt by the Administrative Agent shall have received a certificate of any notice from the Borrower referred to that effect dated such date in Section 2.20(a) and executed by a Financial Officer of the Borrowereffectiveness of any Incremental Commitments, and (ii) in each case advising the Administrative Agent shall have received (with sufficient copies for each Lenders of the Lenders) such customary closing documentation as details thereof and of the Administrative Agent shall have reasonably requestedApplicable Percentages of the Lenders after giving effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (a) The Borrower Company may, by written notice to the General Administrative Agent from time to timeAgent, request that the Total additional U.S. Revolving Credit Commitment (andCommitments, additional Multicurrency Commitments and/or additional Japanese Commitments, as applicable, in connection therewith, the L/C Commitment) be increased by an aggregate amount not to exceed the Incremental Commitment Facility Amount at such time, from one or more Persons who will become U.S. Revolving Lenders, Multicurrency Lenders and/or Japanese Lenders (which may include any existing Lender willing to provide the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of the General Administrative Agent and, if assuming a U.S. Revolving Commitment, the Issuing Lenders (which approvals shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Facility Amount) and, if applicable, the L/C Commitment), and (ii) the date on which such increase is additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments are requested to become effective (which shall not be not less than 10 Business Days nor or more than 60 days after the date of such notice and whichnotice, in any event, must be on or prior unless otherwise agreed to by the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the General Administrative Agent’s notice, either agree to increase its ).
(b) The Company and each additional U.S. Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit additional Multicurrency Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting and/or additional Japanese Lender shall execute all and deliver to the General Administrative Agent an Incremental Assumption Agreement and such other documentation as the General Administrative Agent shall reasonably specify to evidence its Revolving Credit the Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lendersof such Lender.
(bc) Each of the parties hereto hereby agrees that the Administrative Agent Agents may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment Commitments of any Class pursuant to this Section 2.235.05(a), the outstanding Revolving Loans (if any) of such Class are held by the Revolving Credit Lenders in accordance with their new Pro Rata PercentagesApplicable Percentages of such Class. This may be accomplished at the discretion of the General Administrative Agent by (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit BorrowingBorrowing of such Class, (ii) by causing Nonnon-Increasing increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Revolving Loans of the affected Class to Increasing Persons who are becoming Lenders and Augmenting Lenders (or increasing their Commitments of the applicable Class), or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.165.11, but shall otherwise be without premium or penalty.
(cd) Notwithstanding the foregoing, no increase in the Total any Revolving Credit Commitment shall become effective under this Section 2.23 5.05 unless, (i) on the date of such increasethereof, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 7.02 shall be satisfied and the General Administrative Agent shall have received a certificate to that effect dated such date and executed by the President, a Vice President or a Financial Officer of the BorrowerCompany, and (ii) the General Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as legal opinions, board resolutions and certificates consistent with those delivered on the Administrative Agent shall have reasonably requestedEffective Date under paragraphs (b) and (e) of Section 7.01.
Appears in 1 contract
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request that the Total Incremental Revolving Credit Commitment (and, Facility Commitments in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Amount at shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such timeterms. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5 million and a minimum amount of $10,000,000 25 million or equal to the remaining Incremental Commitment Amount), (ii) andthe aggregate amount of Incremental Revolving Facility Commitments, if applicable, which shall not exceed the L/C CommitmentIncremental Amount, and (iii) the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which the “Increased Amount Date”).
(b) The Borrowers and each Incremental Revolving Lender shall be not less than 10 Business Days nor more than 60 days after the date of such notice execute and which, in any event, must be on or prior deliver to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (Incremental Assumption Agreement and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status as a of such Incremental Revolving Credit Lender hereunderLender. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in with the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans Borrowers’ consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerCompany, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (with sufficient copies for each of including amendments to the LendersMortgages and other Security Documents and title endorsement bringdowns) such customary closing documentation as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in Amended and Restated Revolving Credit Agreement each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall have apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Plastics Holding Corp)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Revolving Facility Loan Maturity Date, request that the Total Incremental Amount be provided by one or more Incremental Revolving Credit Commitment Facility Lenders (andwhich may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments in their own discretion; provided, in connection therewiththat each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, the L/C Commitment) be increased by an amount not to exceed the Incremental Commitment Amount at such timeAffiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 5.0 million and a minimum amount of $10,000,000 25.0 million or equal to the remaining Incremental Commitment Amount), (ii) and, if applicable, the L/C Commitment, and the date on which such increase is Incremental Revolving Facility Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity “Increased Amount Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (iiiii) whether such Incremental Revolving Loan Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing terms different from the L/C Commitment of any Issuing Bank shall not be increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrower and each Augmenting Incremental Revolving Facility Lender shall execute all and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence its the Incremental Revolving Credit Facility Commitment and/or its status of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided, that (i) the Other Revolving Loans shall have the same guarantees as a Revolving Credit Lender hereunder. Any increase and rank pari passu or junior in right of payment and of security with the Revolving Credit Commitment may Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Facility Loans, as applicable, and (y) intercreditor arrangements and such other terms as shall be made in an amount which is less reasonably satisfactory to the Administrative Agent and (ii) the final maturity date of any Other Revolving Loans shall be no earlier than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Revolving Facility Loan Maturity Date. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans with Borrower’s consent (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the Administrative Agent (i) by requiring the outstanding Revolving Loans not to be prepaid with unreasonably withheld) and furnished to the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.16, but otherwise without premium or penaltyother parties hereto.
(c) Notwithstanding the foregoing, no increase in the Total Incremental Revolving Credit Facility Commitment shall become effective under this Section 2.23 unless, 2.21 unless (i) on the date of such increaseeffectiveness, the conditions set forth in paragraphs both before and after such effectiveness, (bx) there is no Default or Event of Default and (cy) of Section 4.01 the Borrower shall be satisfied and in Pro Forma Compliance, (ii) the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Responsible Officer of the BorrowerBorrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iiiii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall have apply to any conversion of Eurocurrency Loans to ABR Loans reasonably requestedrequired by the Administrative Agent to effect the foregoing.
Appears in 1 contract