Additional Commitments. (A) KECI may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that, (i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period; (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and (iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and (iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments. (B) Each Additional Commitment Notice shall: (i) confirm that the requirements of clause 3.2(A) above are fulfilled; and (ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”). (C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation. (D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that: (i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and (ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent. (E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date: (i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended); (ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and (iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata. (F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents. (G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt). (H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender. (I) On the date that the Facility Agent executes a Lender Accession Notice: (i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and (ii) that Additional Lender shall become a Party to this Agreement as a “Lender”. (J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to: (i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase; (ii) the “New Lender” were references to that “Additional Lender”; and (iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 2 contracts
Samples: Multicurrency Revolving Letter of Credit Facility Agreement (Kosmos Energy Ltd.), Multicurrency Revolving Letter of Credit Facility Agreement (Kosmos Energy Ltd.)
Additional Commitments. (Aa) KECI Subject to other terms of this Agreement, the MLAB may (at the request that of the Borrower) increase the Total Commitments (the "Additional Commitments") by an amount of up to US$100,000,000. Such increase will be increased by effective only if the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,following procedures and conditions are complied with:
(i) the Additional Commitment Notice shall be delivered prior MLAB and the Borrower enter into a Fee Letter in relation to the expiry of the Availability PeriodAdditional Commitments Fee;
(ii) the increase Additional Commitments will be assumed by one or more banks, financial institutions, trusts, funds or other entities which are regularly engaged in and/oror established for the purpose of making, purchasing or investing in loans, securities or other financial assets (each an "Additional Lender") who deliver a Lender Accession Letter to the Agent and the Borrower no later than 10 Business Days prior to the relevant proposed Additional Lender Accession Date, pursuant to which the Additional Lender assumes all the obligations of a Lender corresponding to that part of the Additional Commitments which it is to assume (as specified in the Lender Accession Letter), as the case may be, assumption if it had been an Original Lender in respect of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional those Commitments) shall not exceed US$50,000,000; and;
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Agent shall, subject to paragraph (iv) the terms below, as soon as reasonably practicable after receipt by it of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant an otherwise duly completed Lender Accession Letter appearing on its face to comply with the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility delivered in accordance with the terms of this Agreement (as amended)Agreement, execute that Lender Accession Letter;
(iiiv) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice Letter delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information it is not already available to it, received all required information to comply satisfied it has complied with all (i) “necessary "know your customer” requirements " or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each under all applicable laws and regulations in relation to the accession assumption of such the Additional Commitments by that Additional Lender;
(v) any increase in the Total Commitment shall take effect on the date specified by the relevant Additional Lender(s) on the Lender Accession Letter, or if later, on the date which each of the Borrower and the Agent executes an otherwise duly completed Lender Accession Letter delivered to it by the relevant Additional Lender(s) (such date being an "Additional Lender Accession Date"), provided that the Additional Lender Accession Date must be a Business Day.
(Ib) Each Lender Accession Letter once delivered is irrevocable.
(c) On the date that the Facility Agent executes a and upon each Additional Lender Accession NoticeDate:
(i) the Total Commitments shall be increased by the amount set out in the Lender Accession Letter as that Lxxxxx's Commitment;
(ii) the Transaction Obligors and each of the relevant Additional Lender(s) shall assume obligations towards one another and/or acquire rights against one another as the Transaction Obligors and such Additional Lender would have assumed and/or acquired had such Additional Lender been an Original Lender in respect of that part of the Additional Commitments which it is to assume;
(iii) each of the relevant Additional Lender(s) (which is not already a party to that the Finance Document as a Lender) shall become a Party as a "Lender" and such Additional Lender Accession Notice, and each of the other Finance Party Parties shall assume obligations towards one another and the Obligors shall acquire the same rights against one another as that Additional Lender and assume the same obligations between themselves as they those Finance Parties would have assumed and/or acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result in respect of that accession and with part of the Commitment specified by Additional Commitments which it as its Committed Additional Participationis to assume; and
(iiiv) that Additional Lender the Commitments of the other Lenders shall become a Party to this Agreement as a “Lender”continue in full force and effect.
(Jd) Each Additional Lender, by executing the Lender Accession Letter, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.
(e) The Borrower shall, within 10 Business Days of demand, pay the Agent the amount of all costs and expenses (including legal fees, subject to agreed caps) reasonably incurred by it in connection with any increase in the Total Commitments under this Clause 2.2.
(f) Neither the Agent nor any Lender shall have any obligation to find an Additional Lender.
(g) Clause 21.5 23.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 Clause 2.2 in relation to an Additional Lender as if references in that clause Clause to:
(i) an “"Existing Lender” " were references to all the Lenders immediately prior to the relevant increaseAdditional Lender Accession Date;
(ii) the “"New Lender” " were references to that “"Additional Lender”"; and
(iii) a “"re-transfer” " and “"re-assignment” " were references to respectively a “"transfer” " and “"assignment”".
(h) The Agent shall, as soon as reasonably practicable after it has executed the Lender Accession Letter, send to the Borrower a copy of that Lender Accession Letter.
Appears in 1 contract
Samples: Facility Agreement (Advanced Technology (Cayman) LTD)
Additional Commitments. (A) KECI may request that The Borrower shall have the Total Commitments be increased by right at any time and from time to time on or after the provision Second Amendment Effective Date, to agree with any Lender upon an increase in the Commitment of additional commitments under the Facility such Lender or to add as a “Lender” with a new Commitment another financial institution or other entity (each such increase being a Lender or other financial institution or entity, an “Requested Additional Commitment Lender,” and each such Commitment, an “Additional Commitment”), by providing written notice to provided that the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested the Additional Commitments obtained on or after the Second Amendment Effective Date shall not exceed $250,000,000 and the aggregate amount of the Extended Commitments (including all previous increases in and/or assumptions of Requested any Additional Commitments) shall not at any time exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) $1,000,000,000. Each Additional Commitment Notice shall:
(i) confirm that shall be an Extended Commitment of the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated Lender in the full amount thereof, as such amount may be (a) reduced from time to time pursuant to Section 2.07 and (b) as to any Additional Lender or assignee thereof, reduced or increased from time to time pursuant to assignments by or to it pursuant to Section 9.04. Upon any Additional Commitment becoming effective, the Borrower shall borrow such Revolving Loans thereunder and make such prepayments of the other Revolving Loans as may be made available required in order to make the outstanding Revolving Loans under such Additional Commitment ratable with the Revolving Loans outstanding under the other Commitments, all in a manner as reasonably determined by the Administrative Agent in consultation with the Borrower and the relevant Additional Commitment Lender, it being understood that such determinations may modify and supersede other provisions hereof as to requirements for notice, minimum amounts, Interest Periods and other similar items, but any required prepayments shall in any event be subject to Section 2.15. The terms applicable to any Additional Commitment and the Revolving Loans hereunder shall be the same terms as are applicable to the Extended Commitments and the Extended Revolving Loans. Each Additional Commitment Lender shall enter into documentation reasonably satisfactory to the Borrower (and the “Administrative Agent to evidence and provide for its Additional Commitment. Any Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “shall be reasonably satisfactory to the Administrative Agent. In connection with any Additional Lender”) that they will participate in Commitment Lender made after the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and Second Amendment Effective Date the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from may pay the relevant Additional Commitment Date:
(i) Lender, directly or through the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu Administrative Agent, such fees with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, thereto as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance it may agree with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Commitment Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Revolving Credit Facility (MF Global Holdings Ltd.)
Additional Commitments. (Aa) KECI The Company may request at any time confirm that the Total Commitments be increased by the provision of additional commitments under the Facility one or more Lenders or any other bank(s) (each such increase being a an “Requested Accordion Lender”) has agreed to commit Additional Commitment”), Commitments by providing written notice delivering an Additional Commitment Notice to the Facility Agent Agent.
(such notice being an “b) Each Additional Commitment Notice”) provided that,Notice is irrevocable and will not be regarded as having been duly completed unless it has been countersigned by each Accordion Lender named therein and it specifies:
(i) the date on which the Additional Commitment Notice shall be delivered prior to the expiry of the Availability PeriodCommitments are confirmed;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing the amount of the Additional Commitments and outstandings under the Facility and the Committed Additional Participation provided by allocated to each Accordion Lender named in the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataNotice.
(Fc) Each By countersigning the Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Commitment Notice:
(i) each Accordion Lender agrees to commit the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as Commitments set out against its Committed Additional Participationname; and
(ii) that Additional each Accordion Lender shall which is not already a Lender, agrees to become a Party party to this Agreement as a “Lender”.
(Jd) An increase in the Commitments under this Clause 21.5 2.3 shall take effect on the date specified in the Additional Commitment Notice as the date on which the Additional Commitments are confirmed or any later date on which the conditions set out in paragraph (Limitation of responsibility of Existing Lenderse) shall apply mutatis mutandis below are satisfied.
(e) An increase in the Commitments under this clause 3.2 in relation to an Additional Lender as if references in that clause toClause 2.3 will only be effective on:
(i) the execution by the Agent of the Additional Commitment Notice; and
(ii) in relation to an “Existing Lender” were references to all the Lenders Accordion Lender which is not a Lender immediately prior to the relevant increase;, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the Additional Commitments by that Accordion Lender. The Agent shall promptly execute the Additional Commitment Notice and notify the Company and the Accordion Lender upon being so satisfied.
(f) No Additional Commitment Notice shall become effective at a time when a Utilisation Request has been delivered and the proposed Utilisation Date under that Utilisation Request has not yet occurred.
(g) Upon receipt of a duly completed Additional Commitment Notice, the Agent shall inform the Lenders of such receipt.
(h) The Agent shall notify the Company and the Lenders of the increased amounts of the Commitments under the Facility promptly after an Additional Commitment Notice takes effect in accordance with this Clause 2.3.
(i) For the avoidance of doubt: (i) the Additional Commitments shall have the same terms (other than as to upfront arrangement and underwriting fees and conditions precedent) as the Facility; and (ii) the “New Lender” were references upfront arrangement and underwriting fees in respect of the Additional Commitments shall be set out in a separate Additional Commitment Fee Letter entered into by the Company and the relevant Accordion Lender(s), provided that no Accordion Lender shall be offered or paid any fees on better terms than those which have been offered to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”the Mandated Lead Arrangers.
Appears in 1 contract
Additional Commitments. (A1) KECI may request that the Total Commitments be increased by the provision Provided there exists no Event of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”)Default or Potential Default, by providing written upon notice to the Facility Administrative Agent (which shall promptly notify the Lenders), the Borrower may request in a writing delivered at any time during the Initial Period additional Commitments from the Lenders of not less than $10,000,000. The Effective Aggregate Commitments under this Agreement shall not exceed $250,000,000, and no more than one such request may be made. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice being to the Lenders).
(2) Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an “Additional Commitment Notice”amount equal to, greater than, or less than its Percentage Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(3) provided that,The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent and the Swing Line Lender (which approval shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(4) If the Aggregate Commitments are increased in accordance with this Paragraph 2(o), the Administrative Agent and the Borrower shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.
(5) As conditions precedent to or concurrent with such increase, the Borrower shall:
(i) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances, Mortgage Policies, endorsements to Mortgage Policies and other instruments as the Additional Commitment Notice shall be delivered prior Administrative Agent, the Swing Line Lender or any Lender through the Administrative Agent may reasonably require from time to time in order to (A) carry out more effectively the purposes of the Loan Documents, (B) to the expiry fullest extent permitted by applicable law, subject any Loan Party or any of its Subsidiaries' properties, assets, rights or interests to the Liens now or hereafter required to be covered by any of the Availability Period;Collateral Documents, (C) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens required to be created thereunder and (D) assure, convey, grant, assign, transfer, preserve, protect and conform more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party; and
(ii) deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by an Authorized Officer of each such Person (i) certifying and attaching the resolutions adopted by such Person approving or consenting to such increase and (ii) in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Paragraph 6 and the maximum aggregate amount other Loan Documents are true and correct on and as of Requested Additional Commitments the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Paragraph 2(o), the representations and warranties contained in Paragraph 6 shall be deemed to refer to the most recent statements furnished pursuant to Paragraph 7(a), and (including all previous increases in and/or assumptions B) no Event of Requested Additional Commitments) shall not exceed US$50,000,000Default or Potential Default exists; and
(iii) no Event make arrangements to insure the prepayments of Default is continuing or would arise as a result of any Loans outstanding on the provision of the Requested Additional Commitment; and
Increase Effective Date (iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated and pay any additional amounts required pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(BParagraph 2(g)) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that necessary to keep the necessary information is not already available to it, received all required information to comply outstanding Loans ratable with all (i) “know your customer” requirements or (ii) other similar checks required, any revised Percentage Shares arising from any nonratable increase in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional LenderCommitments under this Paragraph 2(o).
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (A) KECI At any time and from time to time on and after the Restatement Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $16,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$175,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an "Assuming Lender") no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender's Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. (Aa) KECI may request that The Company shall have the Total Commitments be increased by right, at any time and from time to time, after the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice Effective Date and prior to the Facility Agent Commitment Expiration Date
(such notice being an “b) The effectiveness of Additional Commitment Notice”) provided that,
Commitments pursuant to this Section 2.27 shall be subject to the occurrence of the following: (i) the Additional Commitment Notice shall be delivered prior to Company, each Designated Subsidiary Account Party, the expiry of the Availability Period;
(ii) the increase in and/orAdministrative Agent and each existing Lender or Eligible Person, as the case may be, assumption which agrees to provide an Additional Commitment (each, an “Additional Commitment Lender”) shall have executed and delivered to the Administrative Agent an Additional Commitment Agreement substantially in the form of Requested Exhibit H or such other form reasonably acceptable to the Administrative Agent, subject to such modifications in form and substance reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Commitments is Commitment Lender’s Additional Commitment to take effect before occur upon delivery of such Additional Commitment Agreement to the expiry Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the Availability Period other conditions set forth in this Section 2.27 to the reasonable satisfaction of the Administrative Agent), (ii) all Several Letters of Credit outstanding at such time shall have been returned by each respective beneficiary thereunder to the respective Issuing Agent and the maximum aggregate amount shall either have been cancelled and/or exchanged for new or amended Several Letters of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Credit which give effect to such Additional Commitments) shall not exceed US$50,000,000; and
, and such Additional Commitment Lenders, (iii) no Event if such Additional Commitment Lender is not a United States person (as such term is defined in Section 7701(a)(3) of Default is continuing the Code) for U.S. Federal income tax purposes or would arise as otherwise constitute a result of Foreign Lender, such Additional Commitment Lender shall have provided to the provision of Company the Requested Additional Commitment; and
appropriate documentation described in Section 2.12(e), (iv) the terms Company and each Designated Subsidiary Account Party shall have delivered to the Administrative Agent resolutions authorizing the incurrence of the Requested Additional Commitment shall, for all purposes of this Agreement, obligations to be treated incurred pursuant to each Additional Commitment, and (v) the terms of this Agreement Company and each Designated Subsidiary Account Party shall have delivered to the Administrative Agent an opinion, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Company and such Designated Subsidiary Account Party reasonably satisfactory to the Administrative Agent and dated such date, covering certain matters similar to those set forth in the same manner opinions of counsel delivered to the Lenders on the Effective Date pursuant to Section 4.01(b) and such other matters as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the each Additional Commitment Date, and (x) on each Lender such date, the Total Commitment under, and for all purposes of, this Agreement and each other Credit Document shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, be increased by the aggregate amount of the Committed such Additional Participation is less than the Requested Additional CommitmentCommitments, (y) on each such date, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause deemed modified to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Five Year Unsecured Revolving Credit and Letter of Credit Facility Agreement (Validus Holdings LTD)
Additional Commitments. (a) The Company shall have the right, at any time and from time to time, after the Restatement Effective Date and prior to the Commitment Expiration Date to request (so long as no Default or Event of Default is then in existence or would result therefrom) on one or more occasions that one or more existing Lenders (and/or one or more other Eligible Persons which will become Lenders as provided pursuant to clause (vi) below) provide Additional Commitments; it being understood and agreed, however, that (i) no existing Lender shall be obligated to provide an Additional Commitment as a result of any request by the Company, (ii) until such time, if any, as (x) such existing Lender has agreed in its sole discretion to provide an Additional Commitment and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 2.18(b) and (y) such other conditions set forth in Section 2.18(b) shall have been satisfied, such existing Lender shall not be obligated to make Loans or issue, or participate in, Letters of Credit, in excess of the amounts provided for herein, immediately before giving effect to such Additional Commitments provided by such existing Lender pursuant to this Section 2.18, (iii) any existing Lender may provide an Additional Commitment without the consent of any other Lender, (iv) (A) KECI each provision of Additional Commitments on a given date pursuant to this Section 2.18 shall be in a minimum aggregate amount (for all Additional Commitment Lenders (including, in the circumstances contemplated by clause (vi) below, Eligible Persons who will become Additional Commitment Lenders) of at least $25,000,000 and (B) the aggregate amount of Additional Commitments provided pursuant to this Section 2.18 shall not exceed $75,000,000, (v) all up-front fees payable to any Additional Commitment Lender shall be as set forth in the relevant Additional Commitment Agreement, (vi) if, on or after the tenth Business Day following the request by the Company of the then existing Lenders to provide Additional Commitments pursuant to this Section 2.18 on the terms to be applicable thereto, the Company has not received Additional Commitments in an aggregate amount equal to that amount of the Additional Commitments which the Company desires to obtain pursuant to such request (as set forth in the request provided by the Company to the Administrative Agent as provided above), then the Company may request that Additional Commitments from Eligible Persons which are reasonably acceptable to the Total Administrative Agent and each Fronting Lender in an aggregate amount equal to such deficiency on terms which are no more favorable to such Eligible Person in any respect than the terms offered to the existing Lenders, (vii) all Additional Commitments provided on a given date pursuant to this Section 2.18 shall have the same terms and conditions as all then existing Commitments and shall be increased added to such existing Commitments in accordance with clause (b) of this Section 2.18 below and (viii) all actions taken by the Borrower pursuant to this Section 2.18 shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”)Commitments pursuant to this Section 2.18, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to Company, each Designated Subsidiary Borrower, the expiry of the Availability Period;
(ii) the increase in and/orAdministrative Agent and each existing Lender or Eligible Person, as the case may be, assumption of Requested which agrees to provide an Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Commitment (each, an "Additional Commitments (including all previous increases in and/or assumptions of Requested Additional CommitmentsCommitment Lender") shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of execute and deliver to the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Administrative Agent an Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice substantially in the form set out of Exhibit J, subject to such modifications in Schedule 1 (The Original Lender) duly completed form and signed on behalf of the Additional Lender and specifying its Committed Additional Participation substance reasonably satisfactory to the Facility Agent.
Administrative Agent as may be necessary or appropriate (E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession effectiveness of such Additional Commitment Lender.
(I) On 's Additional Commitment to occur upon delivery of such Additional Commitment Agreement to the date that Administrative Agent, the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party payment of any fees required in connection therewith and the Obligors shall acquire satisfaction of the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis other conditions set forth in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.this
Appears in 1 contract
Additional Commitments. (Aa) KECI may request that Schedule 1 hereto sets forth the Total Additional Commitment of each Additional Lender as of the Assumption Effective Date. The Additional Commitment of each Additional Lender shall be several and not joint.
(b) The Additional Commitments be increased by and the provision Loans and other extensions of additional commitments under credit made thereunder shall have the Facility same terms as those applicable to the Commitments in effect immediately prior to the Assumption Effective Date and the Loans and other extensions of credit made thereunder, respectively. With effect from the Assumption Effective Date, the Additional Lenders shall constitute “Qualified Additional Lenders” and “Lenders”, the Additional Commitments shall constitute “Commitments” and the loans made thereunder shall constitute “Loans” (each such increase being a “Requested Additional Commitment”and not Other Credit Extensions), by providing written notice to in each case for all purposes of the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,Credit Agreement and the other Loan Documents.
(i) Upon the effectiveness of the Additional Commitment Notice shall be delivered Commitments, each Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Lender, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations under the expiry Credit Agreement in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the Availability Period;
aggregate outstanding participations under the Credit Agreement in Letters of Credit held by each Lender (including each such Additional Lender) will equal such Lender’s Pro Rata Share and (ii) if, on the increase in and/orAssumption Effective Date, as there are any Loans outstanding, such Loans shall, upon the case may be, assumption of Requested Additional Commitments is to take effect before the expiry effectiveness of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) , be prepaid from the proceeds of new Loans made under the Credit Agreement, which prepayment shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result be accompanied by accrued interest on the Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.4 of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Credit Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(Bd) Each The Borrower hereby agrees to pay to each Additional Commitment Notice shall:
(i) confirm that Lender, through the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made Administrative Agent, in immediately available to the Borrower funds, an upfront fee (the “Additional Commitment DateUpfront Fee”).
(C) Upon receipt of any notice pursuant equal to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details 0.375% of each Committed Additional Participation.
(D) IfLender’s Additional Commitment, as set forth in Schedule 1 hereto, on the Additional Commitment Assumption Effective Date. Once paid, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with Upfront Fee shall not be refundable under any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agentcircumstances.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Additional Facilities Assumption Agreement (Taylor Morrison Home Corp)
Additional Commitments. (Aa) KECI The Company may request at any time confirm that the Total Commitments be increased by the provision of additional commitments under the Facility one or more Lenders or any other bank(s) (each such increase being a an “Requested Accordion Lender”) has agreed to commit Additional Commitment”), Commitments by providing written notice delivering an Additional Commitment Notice to the Facility Agent Agent.
(such notice being an “b) Each Additional Commitment Notice”) provided that,Notice is irrevocable and will not be regarded as having been duly completed unless it has been countersigned by each Accordion Lender named therein and it specifies:
(i) the date on which the Additional Commitment Notice shall be delivered prior to the expiry of the Availability PeriodCommitments are confirmed;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing the amount of the Additional Commitments and outstandings under the Facility and the Committed Additional Participation provided by allocated to each Accordion Lender named in the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataNotice.
(Fc) Each By countersigning the Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Commitment Notice:
(i) each Accordion Lender agrees to commit the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as Commitments set out against its Committed Additional Participationname; and
(ii) that Additional each Accordion Lender shall which is not already a Lender, agrees to become a Party party to this Agreement as a “Lender”Lender and to become a party to the Intercreditor Agreement as a Pari Passu Creditor (under and as defined in the Intercreditor Agreement).
(Jd) An increase in the Commitments under this Clause 21.5 2.3 shall take effect on the date specified in the Additional Commitment Notice as the date on which the Additional Commitments are confirmed or any later date on which the conditions set out in paragraph (Limitation of responsibility of Existing Lenderse) shall apply mutatis mutandis below are satisfied.
(e) An increase in the Commitments under this clause 3.2 in relation to an Additional Lender as if references in that clause toClause 2.3 will only be effective on:
(i) the execution by the Agent (and, if applicable, the Security Agent) of the Additional Commitment Notice; and
(ii) in relation to an “Existing Lender” were references to all the Lenders Accordion Lender which is not a Lender immediately prior to the relevant increase;, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the Additional Commitments by that Accordion Lender. The Agent shall promptly execute the Additional Commitment Notice and notify the Company and the Accordion Lender upon being so satisfied.
(f) No Additional Commitment Notice shall become effective at a time when a Utilisation Request has been delivered and the proposed Utilisation Date under that Utilisation Request has not yet occurred.
(g) Upon receipt of a duly completed Additional Commitment Notice, the Agent shall inform the Lenders of such receipt.
(h) The Agent shall notify the Company and the Lenders of the increased amounts of the Commitments under the Facility promptly after an Additional Commitment Notice takes effect in accordance with this Clause 2.3.
(i) For the avoidance of doubt: (i) the Additional Commitments shall have the same terms (other than as to upfront arrangement and underwriting fees and conditions precedent) as the Facility; and (ii) the “New Lender” were references upfront arrangement and underwriting fees in respect of the Additional Commitments shall be set out in a separate Additional Commitment Fee Letter entered into by the Company and the relevant Accordion Lender(s), provided that no Accordion Lender shall be offered or paid any fees on better terms than those which have been offered to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”the Mandated Lead Arrangers.
Appears in 1 contract
Additional Commitments. (Ai) KECI may request that At any time following the Total Commitments be increased by Effective Date (but in any event not prior to the provision first Borrowing of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”Term Loans hereunder), the Borrower may by providing written notice to the Administrative Agent elect to establish a Class of revolving facility commitments for the making of loans and/or the issuance of letters of credit (such commitments, the “Additional Revolving Facility Commitments”) and/or a Class of term loan commitments (such commitments, the “Additional Term Loan Commitments” and together with the Additional Revolving Facility Commitments, if any, the “Additional Commitments”) (it being understood that no amounts borrowed under such Additional Commitments shall be applied in direct or indirect exchange for other Indebtedness). Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Additional Commitments and, in the case of Additional Term Loan Commitments, the date for borrowing, as applicable, be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each lender reasonably acceptable to the Administrative Agent (such notice being each, an “Additional Commitment Notice”) provided thatRevolving Facility Lender,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the ” an “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) aboveTerm Loan Lender” or generally, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate to whom the Additional Commitments have been (in accordance with the Facility provided that:
(iprior sentence) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement allocated and the Borrower notifies the Facility Agent amounts of such allocations; provided that any Lender approached to provide all or a portion of the sameAdditional Commitments may elect or decline, on or prior in its sole discretion, to the provide an Additional Commitment Date; andCommitment.
(ii) KECI Such Additional Commitments shall procure that on or prior to become effective as of such Increased Amount Date, and in the case of Additional Commitment DateTerm Loan Commitments, such Additional Lender delivers a Lender Accession Notice Term Loans in the form set out in Schedule 1 respect hereof (The Original Lender) duly completed and signed on behalf of the “Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment RebalancingTerm Loans”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
on such Increased Amount Date; provided that (F1) Each Additional Lender no Default or Event of Default shall become a party exist on such Increased Amount Date before or after giving effect to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises Commitments and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.Loans,
Appears in 1 contract
Samples: Term Loan Credit Agreement
Additional Commitments. (Aa) KECI Subject to the terms and conditions hereof, at any time after the Closing Date and prior to Maturity Date, provided that no Event of Default has occurred and is continuing and that the Borrower is in pro forma compliance with the financial covenants in Section 5.1(1) (assuming the full incurrence and application of the new Indebtedness in question), the Borrower may request that the Total Lenders or any other Persons provide additional Commitments be increased by the provision of additional commitments under the Facility (each such increase being a each, an “Requested Additional Commitment”)) which shall serve to increase the aggregate existing Commitments, such that further Borrowings under the Revolving Credit become available thereunder upon identical terms and conditions.
(b) Any Additional Commitment shall be documented pursuant to an Additional Commitment Agreement and executed by the Borrower, the Person providing written notice the Additional Commitment (the “Additional Lender”) and the Administrative Agent. Upon satisfaction of the conditions precedent set out therein, the Additional Commitment in question shall become effective, and (i) the Administrative Agent shall promptly notify each Lender as to such agreement, and (ii) Schedule 2.1 shall be deemed to be modified accordingly.
(c) Notwithstanding anything to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,contrary in this Agreement:
(i) no Additional Commitment shall require the consent of any Lender other than the Additional Lender in question, but each Additional Commitment Notice shall be delivered prior to require the expiry approval of the Availability PeriodAdministrative Agent and the Issuing Bank, not to be unreasonably withheld;
(ii) the increase no Lender shall have any obligation to acquire any Additional Commitment unless it agrees to do so in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; andits sole discretion;
(iii) no Event of Default is continuing Lender shall have the right to acquire any Additional Commitment or would arise as a result receive prior notice thereof, regardless of the provision of fact that its share in the Requested Additional Commitment; andaggregate Commitments is reduced thereby;
(iv) the terms aggregate amount of the Requested all Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.Commitments shall not exceed U.S.$25,000,000;
(Bv) Each no amount of Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilledCommitments requested at any one time shall be less than U.S.$10,000,000; and
(iivi) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree pay such up-front, arrangement or other fees as may be agreed by the Administrative Agent and any Additional Lender in connection with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any provision by such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the an Additional Commitment Date; andCommitment;
(iid) KECI shall procure that on or prior to the Additional Commitment DateFor greater certainty, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the any Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share pro rata in any prepayments made by the Security created Borrower pursuant to Section 2.9, and the obligations of the Credit Parties under any such Additional Commitment shall be secured pari passu with the other obligations of the Credit Parties under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. At any time on or before the date that is two (A2) KECI may years immediately following the Effective Date, the Borrower shall have the right, exercisable no more than two (2) times, to request that the Total Administrative Agent permit additional Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Fifty Million Dollars (each such increase being a $50,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), to be allocated to either the Term Loan Commitments or the Revolving Credit Commitments, subject to the following:
(i) The aggregate amount of the Lenders’ Commitments shall not exceed Eight Hundred Fifty Million Dollars ($850, 000,000) less the amounts of any prior reductions or terminations of Commitments pursuant to Section 2,09(d), and (ii) the Additional Commitment Amount shall not exceed One Hundred Fifty Million Dollars ($150,000,000) in the aggregate.
(b) Any such request shall be made by providing the Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to the Administrative Agent within twenty one (21) months after the Effective Date, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Initial Accepting Lender’s pro rata share of outstanding Loans and LC Exposure, if applicable, matches the maximum ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Commitment Amount, (iv) the terms Borrower, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender and (v) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the terms applicable Lenders their share of this Agreement any payments received from the Accepting Lenders in accordance with the same manner as the existing Commitmentsimmediately preceding sentence.
(Bc) Each Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Notice shall:
Amount in accordance with paragraph (i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(Ab) above, the Facility Borrower may designate one or more proposed lenders to the Administrative Agent shall promptly notify and the Issuing Lender to become Lenders under this Agreement with respect to such balance of such request, and on or before the Additional Commitment DateAmount (but in no event with proposed commitments of less than $10,000,000 unless the Administrative Agent consents thereto), subject in each Lender shall inform case to the Facility Agent prior approval of the amount Administrative Agent and the Issuing Lender, which approvals shall not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the Base Currency consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to the Administrative Agent (on behalf of the Requested Additional other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, to the aggregate amount of all Commitments after giving effect to the Committed Additional Participation is less than Commitment Amount, (iv) the Requested Additional CommitmentBorrower, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, including each such new Lender’s compliance with the provisions of clauses (ii), (iii) and (v) of Section 9.04(b), and (v) the Borrower may agree paying all of the Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate payments received from such new Lenders in accordance with the Facility provided that:immediately preceding sentence.
(id) any such Additional Lender agrees Notwithstanding anything to become a Lender under the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes the Administrative Agent (on behalf of the Lenders) to enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Nationwide Health Properties Inc)
Additional Commitments. (A) KECI KEL may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to notify the Facility Agent (such notice being an “Additional Commitment Notice”) that it has agreed with any Lender or any other bank or financial institution (in each case, an “Additional Lender”) to increase the Total Commitments by the provision of additional commitments under the Facility (each such increase or, as the case may be, assumption in commitments being an “Additional Commitment”), provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,00040,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).; and
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, In the Facility Agent shall promptly notify the Lenders of such request, and on or before the event that an Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees Party to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the sameAgreement, on or prior to the Additional Commitment Date; and
(ii) KECI KEL shall procure that on or prior to the Additional Commitment Date, such Additional Lender Lender: delivers a Lender Accession Notice in the form set out in Schedule 1 12 (The Original LenderForm of Lender Accession Notice) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation Commitment to the Facility Agent.
(ED) Subject to the conditions in paragraphs paragraph (B) and (DC) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation Commitment for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation Commitment shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation Commitment provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent Borrower either:
(a) making utilisations from the Committed Additional Participation Commitment in priority to utilisations from Commitments under the Facility or to effect a prepayment under the Facility to the existing Lenders (which amount may be redrawn by the Borrower); or
(b) making its first utilisation under the Additional Commitment on the last day of the then Interest Period, in each case to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FE) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents Documents, and benefit from the Deed of Guarantee, in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(GF) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(HG) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) necessary “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each under all applicable laws and regulations in relation to the accession of such Additional Lender.
(IH) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; andCommitment;
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(JI) Clause 21.5 22.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Kosmos Energy Ltd.)
Additional Commitments. Borrower shall have the right, no more than two (A2) KECI may times during the term of the Loan, to request that the Total Administrative Agent permit additional Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Ten Million Dollars (each such increase being a $10,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed One Hundred Fifty Million Dollars ($150, 000,000).
(b) Any such request shall be made by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to Administrative Agent, which notice shall set forth such details with respect thereto as are reasonably requested by Administrative Agent. Upon receipt of the Additional Commitment Notice, Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. Administrative Agent shall notify Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result the Accepting Lenders paying to Administrative Agent (on behalf of the provision of the Requested Additional Commitment; and
(ivother Lenders) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated aggregate amount determined by Administrative Agent to be made available necessary so that each Accepting Lender’s pro rata share of outstanding Loans and L/C Obligations matches the ratio of its increased Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of all revised Commitments after giving effect to the Committed Additional Participation is Commitment Amount, (iv) Borrower, the Accepting Lenders and Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonable acceptable to Borrower, the Accepting Lenders, Administrative Agent and the L/C Issuer and (v) Borrower paying all of Administrative Agent’s reasonable out-of- pocket expenses in connection with the foregoing. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with clause (b) above, Borrower may designate one or more proposed lenders to Administrative Agent and the L/C Issuer to become Lenders under this Agreement with respect to such balance of the Additional Commitment Amount (but in no event with proposed commitments of less than $5,000,000 unless Administrative Agent consents thereto), subject in each case to the Requested Additional Commitmentprior approval of Administrative Agent and the L/C Issuer, which approvals shall not be unreasonably withheld or delayed if such proposed lenders meet the Borrower may agree standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and L/C Obligations matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) Borrower, the new Lenders and Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to Borrower, Administrative Agent and the L/C Issuer, including each such new Lender’s compliance with the provisions of clauses (ii), (iii) and (v) of Section 9.04(b), and (v) Borrower paying all of Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from such Additional Lender agrees new Lenders in accordance with the immediately preceding sentence.
(d) Notwithstanding anything to become a Lender under the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes Administrative Agent (on behalf of the Lenders) to enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital New York Recovery Reit Inc)
Additional Commitments. (A) KECI At any time and from time to time on and after the Second Restatement Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $9,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$75,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an “Assuming Lender”) no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender’s Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. Subject to the terms and conditions hereof and of the Unit Subscription Agreement:
(Aa) KECI may request that Each Member listed on Schedule II with a dollar amount set forth under column (2) opposite such Member’s name (each, a “Committed Member”) agrees to make, upon the Total Commitments issuance of Capital Calls meeting the requirements of this Article 5, additional cash Capital Contributions (“Commitment Contributions”) in an amount not to exceed in aggregate the amount set forth opposite the name of such Committed Member under column (2) on Schedule II (the “Additional Commitment” of such Committed Member) in exchange for Series A-2 Preferred Units. The amount, at a particular time, by which a Committed Member’s Additional Commitment exceeds the total amount of the Commitment Contributions previously made by such Committed Member pursuant to this Article 5 shall be the “Remaining Commitment” of such Committed Member at such time. For the avoidance of doubt, in no event shall any Member’s Additional Commitment or Remaining Commitment be increased by without such Member’s prior written consent and in no event shall any Member be obligated at any time to make Capital Contributions in excess of its Remaining Commitment as of the provision time of additional commitments under such Capital Call less any amounts required to be funded pursuant to then outstanding Capital Calls.
(b) [Intentionally deleted.]
(c) In connection with any adjustment to the Facility Additional Commitments of the Committed Members in connection with the reallocation of Future Series A-2 Preferred Units to employees of the Company or its Subsidiaries (including members of the Management Team) or non-employee Managers of the Company (each such increase being employee or Manager, a “Requested Additional CommitmentReallocated Committed Member”)) pursuant to Section 3.1 of the Unit Subscription Agreement, the Board, in its sole discretion, may elect to apportion the first Capital Call following such adjustment in a manner such that after such Reallocated Committed Member makes the Commitment Contributions required by providing written notice it pursuant to the Facility Agent (Call Notice related to such notice being an “Additional Commitment Notice”) provided that,
Capital Call (i) the Additional quotient (expressed as a percentage) obtained by dividing (a) the total amount of Commitment Notice shall Contributions such Reallocated Committed Member will have funded immediately after such Capital Call by (b) the total amount of Commitment Contributions all Committed Members will have funded immediately after such Capital Call will be delivered prior equal to the expiry of the Availability Period;
(ii) the quotient (expressed as a percentage) obtained by dividing (x) such Reallocated Committed Member’s Total Commitment by (y) the aggregate Total Commitments of all Committed Members.
(d) The Remaining Commitment of each Committed Member shall be reduced to zero upon the consummation of a Qualified Public Offering and no Management Committed Member shall thereafter be entitled to increase in and/or, as the case may be, assumption of Requested its Additional Commitments Commitment.
(e) If a Committed Member is to take effect before the expiry an employee of the Availability Period Company or any of its Subsidiaries and such employment ceases for any reason, then, except as otherwise agreed by the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) Board, such Committed Member’s Remaining Commitment shall not exceed US$50,000,000; and
(iii) immediately be reduced to zero and such Committed Member shall have no Event of Default is continuing or would arise as a result of the provision of the Requested right to increase its Additional Commitment; and
(iv) . If the terms Remaining Commitment of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated a Committed Member is reduced to zero pursuant to the terms preceding sentence, the Board shall have the authority to reassign the amount of this Agreement such forfeited Remaining Commitment to one or more other Committed Members who consent in writing to such reassignment in such amounts as are determined by the same manner as the existing CommitmentsBoard in its sole discretion.
(Bf) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional A Member whose Remaining Commitment is anticipated zero shall have no further right or obligation to be made available make Commitment Contributions to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower Company except as may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu be required with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender a Defaulting Member pursuant to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataSection 5.4.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Laredo Petroleum - Dallas, Inc.)
Additional Commitments. Borrower shall have the right, no more than two (A2) KECI may times during the term of the Loan, to request that the Total Administrative Agent permit additional Revolving Loan Commitments and/or Term Loan Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Revolving Loan Commitments and Term Loan Commitments in a minimum increment of at least Twenty Five Million Dollars (each such increase being a $25,000,000.00) in excess of the Lenders’ then outstanding Revolving Loan Commitments and Term Loan Commitments (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed One Billion Dollars ($1,000,000,000.00).
(b) Any such request shall be made by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to Administrative Agent, which notice shall set forth such details with respect thereto as are reasonably requested by Administrative Agent, including, without limitation, whether the Additional Commitment Amount shall increase the then outstanding Revolving Loan Commitments or the then outstanding Term Loan Commitments. Upon receipt of the Additional Commitment Notice, Administrative Agent shall notify the then existing non-Defaulting Lenders of the terms of such Additional Commitment Notice and each such Lender’s pro rata share (in proportion to the Applicable Percentages of the non-Defaulting Lenders) of the proposed Additional Commitment Amount and whether such Additional Commitment Amount shall increase the then outstanding Revolving Loan Commitments or Term Loan Commitments. If any Lender rejects the offer to increase its respective Revolving Loan Commitments or Term Loan Commitments or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the non-Defaulting Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata in proportion to the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. No Defaulting Lender may accept any portion of any Additional Commitment Amount. Administrative Agent shall notify Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) Borrower issuing additional or substitute Notes to the increase in and/orAccepting Lenders and reaffirming its obligations under the original Notes and Loan Documents, as the case may beamended pursuant to this Section 10.17, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result with respect to any Additional Commitment Amount that results in an increase in the Revolving Loan Commitments, the Accepting Lenders that have agreed to increase their respective Revolving Loan Commitments paying to Administrative Agent (on behalf of the provision of the Requested Additional Commitment; and
(ivother Lenders) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated aggregate amount determined by Administrative Agent to be made available necessary so that each Accepting Lender’s pro rata share of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of its increased Revolving Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed all increased Revolving Commitments after giving effect to such Additional Participation is less than the Requested Additional CommitmentCommitment Amount and, after giving effect to their receipt of such payment, the Borrower may agree with any bank or financial institution which is not a Lender other Revolving Lenders’ pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Revolving Commitments to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount, (each an “Additional Lender”iv) that they will participate Borrower, the Accepting Lenders and Administrative Agent executing such other documents evidencing such adjustments in the Facility provided Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Revolving Loan Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the foregoing, (vii) Borrower paying to Administrative Agent such fees as are due pursuant to the Fee Letter, and (viii) the understanding that:
, with respect to any Additional Commitment Amount that results in an increase in the Term Loan Commitments, the only Term Loan Lenders that shall have any obligation to fund such Additional Commitment Amount shall be the Accepting Lenders that increase their Term Loan Commitments, which shall be several obligations of such Accepting Lenders and which funding shall be in proportion to the respective shares of such Additional Commitment Amount that such Accepting Lenders were allocated in response to the Additional Commitment Notice. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.17 unless, (i) on the date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 4.02 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 6.01 after giving effect to any Loans to be made on such date and the Additional Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 6.01) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective. Each of the REIT and Borrower agrees to take such further reasonable action as may reasonably be requested by Administrative Agent in connection with any request pursuant to this Section 10.17.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with clause (b) above, Borrower may designate one or more proposed lenders to Administrative Agent (and, if such Additional Commitment Amount would involve an increase in the Revolving Commitments, the Swingline Lender agrees and the L/C Issuer) to become a Lender Lenders under this Agreement with respect to such balance of the Additional Commitment Amount, subject in each case to the prior consent by Administrative Agent (and, if such Additional Commitment Amount would involve an increase in the Revolving Commitments, the Swingline Lender and make available a the L/C Issuer), which approvals shall not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Institution. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) Borrower issuing new Notes to the new Lenders and reaffirming its obligations under the original Notes and Loan Documents, as amended pursuant to this Section 10.17, (iii) with respect to any Additional Commitment Amount that results in an increase in the Revolving Loan Commitments, such New Lenders that have agreed to provide Revolving Loan Commitments and Accepting Lenders paying to Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by Administrative Agent to be necessary so that such new Lender’s and, if applicable, Accepting Lenders’ respective pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their Revolving Commitments as so increased to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount and, after giving effect to their receipt of such payment, the other Revolving Lenders’ pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Revolving Commitments to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount, (iv) Borrower, the new Lenders, any Accepting Lenders (if applicable) and Administrative Agent executing such other documents evidencing the addition of the new Lenders as Lenders hereunder and the adjustment of the Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the new Lenders, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Revolving Loan Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing, (vii) Borrower paying to the Joint Lead Arrangers, the Sole Bookrunner, the new Lenders and the Accepting Lenders such fees as are due in connection with the Additional Commitment Amount and (viii) the understanding that, with respect to any Additional Commitment Amount that results in an increase in the Term Loan Commitments, the only Term Loan Lenders that shall have any obligation to fund such Additional Commitment Amount shall be the new Lenders that have been approved pursuant to this Section 10.17(c) and any Accepting Lenders that are Term Loan Lenders, which shall be several obligations of such new Lenders and Accepting Lenders and which funding shall be in proportion to the respective shares of such Additional Commitment Amount that such new Lender and Accepting Lenders were allocated in response to the Additional Commitment Notice. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.17 unless, (i) on the terms date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 4.02 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 6.01 after giving effect to any Loans to be made on such date and the Additional Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 6.01) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective.
(d) Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes Administrative Agent (on behalf of the Lenders) to enter into amendments and modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (Aa) KECI The Company may request at any time confirm that the Total Commitments be increased by the provision of additional commitments under the Facility one or more Lenders or any other bank(s) (each such increase being a “Requested an Accordion Lender) has agreed to commit Additional Commitment”), Commitments by providing written notice delivering an Additional Commitment Notice to the Facility Agent Agent.
(such notice being an “b) Each Additional Commitment Notice”) provided that,Notice is irrevocable and will not be regarded as having been duly completed unless it has been countersigned by each Accordion Lender named therein and it specifies:
(i) the date on which the Additional Commitment Notice shall be delivered prior to the expiry of the Availability PeriodCommitments are confirmed;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing the amount of the Additional Commitments and outstandings under the Facility and the Committed Additional Participation provided by allocated to each Accordion Lender named in the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataNotice.
(Fc) Each By countersigning the Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Commitment Notice:
(i) each Accordion Xxxxxx agrees to commit the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as Commitments set out against its Committed Additional Participationname; and
(ii) that Additional each Accordion Lender shall which is not already a Lender, agrees to become a Party party to this Agreement as a “Lender”.
(Jd) An increase in the Commitments under this Clause 21.5 2.3 shall take effect on the date specified in the Additional Commitment Notice as the date on which the Additional Commitments are confirmed or any later date on which the conditions set out in paragraph (Limitation of responsibility of Existing Lenderse) shall apply mutatis mutandis below are satisfied.
(e) An increase in the Commitments under this clause 3.2 in relation to an Additional Lender as if references in that clause toClause 2.3 will only be effective on:
(i) the execution by the Agent of the Additional Commitment Notice; and
(ii) in relation to an “Existing Lender” were references to all the Lenders Accordion Lender which is not a Lender immediately prior to the relevant increase;, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the Additional Commitments by that Accordion Lender. 27 = NUMPAGES 135-2 133 The Agent shall promptly execute the Additional Commitment Notice and notify the Company and the Accordion Lender upon being so satisfied.
(f) No Additional Commitment Notice shall become effective at a time when a Utilisation Request has been delivered and the proposed Utilisation Date under that Utilisation Request has not yet occurred.
(g) Upon receipt of a duly completed Additional Commitment Notice, the Agent shall inform the Lenders of such receipt.
(h) The Agent shall notify the Company and the Lenders of the increased amounts of the Commitments under the Facility promptly after an Additional Commitment Notice takes effect in accordance with this Clause 2.3.
(i) For the avoidance of doubt: (i) the Additional Commitments shall have the same terms (other than as to upfront arrangement and underwriting fees and conditions precedent) as the Facility; and (ii) the “New Lender” were references upfront arrangement and underwriting fees in respect of the Additional Commitments shall be set out in a separate Additional Commitment Fee Letter entered into by an Obligor and the relevant Accordion Lender(s), provided that no Accordion Lender shall be offered or paid any fees on better terms than those which have been offered to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”the Restatement Effective Date Lenders.
Appears in 1 contract
Additional Commitments. Borrower shall have the right, no more than two (A2) KECI may times during the term of the Loan, to request that the Total Administrative Agent permit additional Revolving Loan Commitments and/or Term Loan Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Revolving Loan Commitments and Term Loan Commitments in a minimum increment of at least Twenty Five Million Dollars (each such increase being a $25,000,000.00) in excess of the Lenders’ then outstanding Revolving Loan Commitments and Term Loan Commitments (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed Three Hundred Twenty Five Million Dollars ($325,000,000.00).
(b) Any such request shall be made by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to Administrative Agent, which notice shall set forth such details with respect thereto as are reasonably requested by Administrative Agent, including, without limitation, whether the Additional Commitment Amount shall increase the then outstanding Revolving Loan Commitments or the then outstanding Term Loan Commitments. Upon receipt of the Additional Commitment Notice, Administrative Agent shall notify the then existing non-Defaulting Lenders of the terms of such Additional Commitment Notice and each such Lender’s pro rata share (in proportion to the Applicable Percentages of the non-Defaulting Lenders) of the proposed Additional Commitment Amount and whether such Additional Commitment Amount shall increase the then outstanding Revolving Loan Commitments or Term Loan Commitments. If any Lender rejects the offer to increase its respective Revolving Loan Commitments or Term Loan Commitments or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the non-Defaulting Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata in proportion to the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. No Defaulting Lender may accept any portion of any Additional Commitment Amount. Administrative Agent shall notify Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) Borrower issuing additional or substitute Notes to the increase in and/orAccepting Lenders and reaffirming its obligations under the original Notes and Loan Documents, as the case may beamended pursuant to this Section 10.17, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result with respect to any Additional Commitment Amount that results in an increase in the Revolving Loan Commitments, the Accepting Lenders that have agreed to increase their respective Revolving Loan Commitments paying to Administrative Agent (on behalf of the provision of the Requested Additional Commitment; and
(ivother Lenders) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated aggregate amount determined by Administrative Agent to be made available necessary so that each Accepting Lender’s pro rata share of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of its increased Revolving Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed all increased Revolving Commitments after giving effect to such Additional Participation is less than the Requested Additional CommitmentCommitment Amount and, after giving effect to their receipt of such payment, the Borrower may agree with any bank or financial institution which is not a Lender other Revolving Lenders’ pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Revolving Commitments to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount, (each an “Additional Lender”iv) that they will participate Borrower, the Accepting Lenders and Administrative Agent executing such other documents evidencing such adjustments in the Facility provided Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Revolving Loan Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the foregoing, (vii) Borrower paying to the Sole Lead Arranger, the Sole Bookrunner and the Accepting Lenders such fees as are due in connection with the Additional Commitment Amount pursuant to the Fee Letter, and (viii) the understanding that:
, with respect to any Additional Commitment Amount that results in an increase in the Term Loan Commitments, the only Term Loan Lenders that shall have any obligation to fund such Additional Commitment Amount shall be the Accepting Lenders that increase their Term Loan Commitments, which shall be several obligations of such Accepting Lenders and which funding shall be in proportion to the respective shares of such Additional Commitment Amount that such Accepting Lenders were allocated in response to the Additional Commitment Notice. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.17 unless, (i) on the date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 4.02 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 6.01 after giving effect to any Loans to be made on such date and the Additional Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 6.01) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective. Each of the REIT and Borrower agrees to take such further reasonable action as may reasonably be requested by Administrative Agent in connection with any request pursuant to this Section 10.17.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with clause (b) above, Borrower may designate one or more proposed lenders to Administrative Agent (and, if such Additional Commitment Amount would involve an increase in the Revolving Commitments, the Swingline Lender agrees and the L/C Issuer) to become a Lender Lenders under this Agreement with respect to such balance of the Additional Commitment Amount, subject in each case to the prior consent by Administrative Agent (and, if such Additional Commitment Amount would involve an increase in the Revolving Commitments, the Swingline Lender and make available a the L/C Issuer), which approvals shall not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Institution. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) Borrower issuing new Notes to the new Lenders and reaffirming its obligations under the original Notes and Loan Documents, as amended pursuant to this Section 10.17, (iii) with respect to any Additional Commitment Amount that results in an increase in the Revolving Loan Commitments, such New Lenders that have agreed to provide Revolving Loan Commitments and Accepting Lenders paying to Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by Administrative Agent to be necessary so that such new Lender’s and, if applicable, Accepting Lenders’ respective pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their Revolving Commitments as so increased to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount and, after giving effect to their receipt of such payment, the other Revolving Lenders’ pro rata shares of outstanding Revolving Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Revolving Commitments to the aggregate amount of all increased Revolving Commitments after giving effect to such Additional Commitment Amount, (iv) Borrower, the new Lenders, any Accepting Lenders (if applicable) and Administrative Agent executing such other documents evidencing the addition of the new Lenders as Lenders hereunder and the adjustment of the Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the new Lenders, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Revolving Loan Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing, (vii) Borrower paying to the Sole Lead Arranger, the Sole Bookrunner, the new Lenders and the Accepting Lenders such fees as are due in connection with the Additional Commitment Amount and (viii) the understanding that, with respect to any Additional Commitment Amount that results in an increase in the Term Loan Commitments, the only Term Loan Lenders that shall have any obligation to fund such Additional Commitment Amount shall be the new Lenders that have been approved pursuant to this Section 10.17(c) and any Accepting Lenders that are Term Loan Lenders, which shall be several obligations of such new Lenders and Accepting Lenders and which funding shall be in proportion to the respective shares of such Additional Commitment Amount that such new Lender and Accepting Lenders were allocated in response to the Additional Commitment Notice. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.17 unless, (i) on the terms date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 4.02 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 6.01 after giving effect to any Loans to be made on such date and the Additional Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 6.01) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective.
(d) Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes Administrative Agent (on behalf of the Lenders) to enter into amendments and modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital New York Recovery Reit Inc)
Additional Commitments. (Aa) KECI may request that Notwithstanding anything to the Total Commitments be increased by the provision contrary set forth herein (but subject to satisfaction (or waiver) of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”all conditions precedent set forth in Section 5), by providing written notice to the Facility Agent parties hereby agree that at any time after the date hereof until the date which is three months after the Effective Date, any one or more Lenders or Additional Lenders (such notice being each, an “Additional Commitment NoticeRevolving Facility Lender”) provided that,
(i) the Additional Commitment Notice shall be delivered prior may, by delivering to the expiry of Administrative Agent a duly executed Joinder in substantially the Availability Period;
form attached as Exhibit B hereto, provide up to $25,000,000 (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as aggregate) in additional New Revolving Facility Commitments under the existing Commitments.
New Revolving Credit Facility. The parties hereto agree that, upon delivery of such Joinder in accordance with the immediately preceding sentence and satisfaction (Bor waiver) Each Additional Commitment Notice shall:
of all conditions precedent set forth in Section 5, including (iwithout limitation), the proviso in Section 5(a)(v) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Lender Effective Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Revolving Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party Revolving Facility Lender under the Restated Credit Agreement with a Revolving Facility Commitment (as defined in the Restated Credit Agreement) in dollars and in a principal amount set forth in the applicable Joinder, all as provided in the Restated Credit Agreement.
(b) On any Additional Lender Effective Date, (i) this Restatement Agreement shall be deemed to be modified and supplemented to the Finance Documents extent necessary to join the applicable Additional Revolving Facility Lender as a party hereto and (and be entitled to share ii) each of the applicable Additional Revolving Facility Lenders shall purchase from each of the other Revolving Facility Lenders, at the principal amount thereof, such interests in the Security created under Revolving Facility Loans outstanding on such Additional Lender Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Security Documents Revolving Facility Loans will be held by Revolving Facility Lenders ratably in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documentstheir respective Revolving Facility Commitments.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Edwards Group LTD)
Additional Commitments. (Ai) KECI At any time following the Fourth Amendment Effective Date, the Borrower may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to the Administrative Agent elect to request an increase to any existing Class of Revolving Facility Agent Commitments (any such notice being an increase, the “Additional Commitment NoticeRevolving Facility Commitments”) provided that,
and/or the Term B Loan Commitments (i) any such increase, the “Additional Term Loan Commitments” and together with the Additional Commitment Notice shall be delivered prior to Revolving Facility Commitments, if any, the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested “Additional Commitments) ”). Such notice shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(iiA) specify the date upon (an “Increased Amount Date”) on which the Requested Borrower proposes that the Additional Commitment is anticipated to Commitments and, in the case of Additional Term Loan Commitments, the date for borrowing, as applicable, be made available available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Borrower Administrative Agent and (B) offer each Revolving Facility Lender (in the “case of Additional Revolving Facility Commitments) and/or Term B Loan Lender (in the case of Additional Term Loan Commitments) the right to increase its Revolving Facility Commitment Date”).
and/or Term B Loan Commitment, as applicable, on a pro rata basis; provided that with respect to an Additional Revolving Facility Commitment in an amount not greater than $50 million, (Cx) Upon receipt of the notice specified in clause (A) can be made at any notice time on or prior to the proposed Increased Amount Date and (y) there shall be no requirement to offer such increase to each Revolving Facility Lender pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”B). The Facility Borrower shall notify the Administrative Agent shall promptly notify KECI in writing of the details identity of each Committed Additional Participation.
(D) IfRevolving Facility Lender, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank Term B Loan Lender or other financial institution which is not a Lender reasonably acceptable to the Administrative Agent (each each, an “Additional Revolving Facility Lender,” an “Additional Term Loan Lender” or generally, an “Additional Lender”) that they will participate to whom the Additional Commitments have been (in accordance with the Facility provided that:
(iprior sentence) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement allocated and the Borrower notifies the Facility Agent amounts of such allocations; provided that any Lender approached to provide all or a portion of the sameAdditional Commitments may elect or decline, on or prior in its sole discretion, to the provide an Additional Commitment Date; andCommitment.
(ii) KECI Such Additional Commitments shall procure that on or prior to become effective as of such Increased Amount Date, and in the case of Additional Commitment DateTerm Loan Commitments, such Additional Lender delivers Term Loans in respect hereof (“Additional Term Loans”) shall be made on such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Additional Commitments and Loans; (2) after giving effect thereto on a Lender Accession Notice Pro Forma Basis as if such incurrence had occurred on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), the Borrower shall be in compliance with Sections 6.11 and 6.15, if and as applicable on such Increased Amount Date; and (3) the form set out Borrower shall make any payments required pursuant to Section 2.16 in Schedule 1 (The Original Lender) duly completed and signed on behalf connection with the provisions of the Additional Lender and specifying its Committed Additional Participation to the Facility AgentCommitments.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing The sum of the outstanding Additional Revolving Facility Commitments and outstandings under the principal amount outstanding of Additional Term Loans, when aggregated with the principal amount outstanding of Permitted Notes, shall not exceed $800 million plus the Revolving Facility Commitment Capacity; provided that this limitation shall be increased by (x) $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments (other than Additional Revolving Facility Commitments utilizing Revolving Facility Commitment Capacity) as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the Committed incurrence of Additional Participation Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 2.00 to 1.00 and (y) an additional $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments (other than Additional Revolving Facility Commitments utilizing Revolving Facility Commitment Capacity) as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the incurrence of Additional Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 1.00 to 1.00; provided by further that there shall be no Additional Term Loans until the Borrower shall have issued at least $800 million in principal amount of Permitted Junior Notes.
(iv) The all-in-yield of any Additional Lender Term Loans shall be as provided in the joinder agreement pursuant to ensure which such Additional Term Loans are established (it being understood that they are pro rata (the “New Commitment Rebalancing”all-in-yield” shall be determined after taking into account original issue discount, assuming a four-year average life, fees, other than bona fide arrangement, underwriting, structuring or similar fees not generally shared with the applicable Lenders, and interest margin and, if the LIBO Rate in respect of any Additional Term Loans includes an interest rate floor greater than the LIBO Rate then applicable to the existing Term B Loans, such interest rate floor shall be equated to interest margin). In the event that the all-in-yield for any Additional Term Loans is greater than the all-in-yield for the Term B Loans (or other term loan previously established as an Additional Term Loan hereunder) by greater than 50 basis points, then the all-in-yield for the Term B Loans (or other term loan previously established as an Additional Term Loan hereunder) will be made, at increased such that after giving effect thereto the Borrower’s election, by all-in-yield for the Facility Agent making utilisations from the Committed Term B Loans (or other term loan established as an Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FTerm Loan hereunder) Each Additional Lender shall become a party plus 50 basis points is equal to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) all-in-yield for the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Term Loans.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Amendment Agreement (Alpha Natural Resources, Inc.)
Additional Commitments. (Aa) KECI may request that Schedule 1 hereto sets forth the Total Additional Commitment of each Additional Lender as of the Assumption Effective Date (as defined below). The Additional Commitment of each Additional Lender shall be several and not joint.
(b) The Additional Commitments be increased by and the provision Revolving Loans and other extensions of additional commitments under credit made thereunder shall have the Facility same terms as those applicable to the Commitments and the Revolving Loans and other extensions of credit made thereunder, respectively. With effect from the Assumption Effective Date, the Additional Lenders shall constitute “Qualified Additional Lenders”, “Revolving Loan Lenders” and “Lenders”, the Additional Commitments shall constitute “Commitments” and the loans made thereunder shall constitute “Revolving Loans” (each such increase being a “Requested Additional Commitment”and not Other Credit Extensions), by providing written notice to in each case for all purposes of the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,Credit Agreement and the other Loan Documents.
(i) Upon the effectiveness of the Additional Commitment Notice shall be delivered Commitments, each Revolving Loan Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Lender, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Loan Lender’s participations under the expiry Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the Availability Period;
aggregate outstanding (x) participations under the Credit Agreement in Letters of Credit and (y) participations under the Credit Agreement in Swing Line Loans held by each Revolving Loan Lender (including each such Additional Lender) will equal such Lender’s Pro Rata Share and (ii) if, on the increase in and/orAssumption Effective Date, as there are any Revolving Loans outstanding, such Revolving Loans shall, upon the case may be, assumption of Requested Additional Commitments is to take effect before the expiry effectiveness of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) , be prepaid from the proceeds of new Revolving Loans made under the Credit Agreement, which prepayment shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Loan Lender in accordance with Section 2.4 of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Credit Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(Bd) Each The Co-Borrowers hereby agree to pay to each Additional Commitment Notice shall:
(i) confirm that Lender, through the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made Administrative Agent, in immediately available to the Borrower funds, an upfront fee (the “Upfront Fee”) equal to 1.0% of each Additional Commitment Lender’s Additional Commitment, as set forth in Schedule 1 hereto, on the Assumption Effective Date”). Once paid, the Upfront Fee shall not be refundable under any circumstances.
(Ce) Upon receipt of any notice pursuant to clause 3.2(A) above, No later than 60 days following the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Assumption Effective Date, each Lender shall inform Holdings, U.S. Holdings, Canada Holdings, Canada Intermediate Holdings, U.S. XxxXx or the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) IfCo-Borrowers, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata applicable (the “New Commitment RebalancingDelivering Parties”), shall provide to the Administrative Agent such documentation, if any, regarding the flood hazard status of the improved Mortgaged Properties as is required to be delivered to the Lenders under applicable Federal Emergency Management Agency (or any successor agency) will be made, at the Borrower’s election, regulations as agreed by the Facility Agent making utilisations from parties; provided that, if the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procureDelivering Parties commence compiling such documentation within such 60-day period, as far as practicable, any New Commitment Rebalancing, following which all utilisations such period shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound extended by such accession. The Facility Agent must promptly sign any additional period of time as is reasonably necessary in order to compile, prepare and deliver such Lender Accession Notice (and in any event within three Business Days of receipt)documentation using reasonable diligence.
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Additional Facilities Assumption Agreement and Amendment No. 2 (Taylor Morrison Home Corp)
Additional Commitments. The Borrower shall have the right from time to time to cause the Administrative Agent to increase the total Commitments by up to $100,000,000, subject to satisfaction of the following terms and conditions:
(Aa) KECI may Any request that for increase in the Total total Commitments shall be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,to the Administrative Agent at least ten (10) Business Days prior to the date upon which the Borrower shall desire such increase to become effective, and shall set forth (1) the requested amount of the additional commitment (the “Additional Commitment Amount”), which Additional Commitment Amount shall be in the minimum amount of $5,000,000 and an integral multiple of $5,000,000 in excess thereof and (2) such details with respect thereto as are reasonably requested by the Administrative Agent.
(b) The aggregate amount of the Lenders’ Commitments after giving effect to the Additional Commitment Amount shall not exceed $200,000,000.
(c) Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (c) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default and no Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes to the Lenders whose Commitments have changed (if requested by such Lender(s)), as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period and other Lenders) the maximum aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans matches the ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Loan Parties, the Accepting Lenders and the Administrative Agent (on behalf of the Lenders) executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Loan Parties, the Accepting Lenders and the Administrative Agent, (including v) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower and the Administrative Agent prior to the Administrative Agent commencing its efforts under this paragraph (c), and (vi) the Borrower paying all previous increases of the Administrative Agent’s reasonable and documented out-of-pocket expenses in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; andconnection with the foregoing.
(iiid) In the event that the Additional Commitment Amount is not achieved pursuant to paragraph (c) above, Administrative Agent shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange for additional lenders with Commitments aggregating up to the Additional Commitment Amount. Administrative Agent shall submit a list of additional proposed syndicate members to the Borrower for its review and approval. If any such proposed lenders are so approved by the Borrower, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default and no Event of Default is continuing or would arise being in existence at such time, (ii) the Borrower issuing Notes to the new Lenders (if so requested by such new Lender(s)), (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower paying to the Lenders the amounts payable, if any, to such Lenders pursuant to Section 2.16 as a result of the provision prepayment of any such Loans, (v) the Loan Parties, the new Lenders and the Administrative Agent (on behalf of the Requested Additional Commitment; and
Lenders) executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower and the Administrative Agent, (ivvi) the terms Borrower paying the Administrative Agent for the account of each new Lender such upfront fees as shall be agreed to by the Borrower prior to Administrative Agent commencing its efforts under this paragraph (d), and (vii) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the terms of this Agreement in the same manner as the existing Commitmentsforegoing.
(Be) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available Notwithstanding anything to the Borrower (contrary contained in this Agreement or the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Dateother Loan Documents, each Lender shall inform hereby authorizes the Facility Borrower and the Administrative Agent (on behalf of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(DLenders) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility and the Committed Additional Participation provided Loans contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (Aa) KECI In the event that the Borrower wishes to increase the Commitments at any time when no Event of Default has occurred and is continuing, it shall notify the Administrative Agent in writing of the amount (the “Proposed Increase Amount”) of such proposed increase (such notice, a “Commitment Increase Notice”); provided that the aggregate amount of any such increase in Commitments shall be at least $10,000,000. The Borrower may request offer to the existing Lenders and, with the consent of the Administrative Agent, the Swingline Lender and any Issuing Lenders (which consents shall not be unreasonably withheld), one or more additional banks, financial institutions or other entities the opportunity to participate in all or a portion of the Proposed Increase Amount pursuant to Section 1.05(b).
(b) Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to Section 1.05(a) shall, in each case, execute a Commitment Increase Supplement with the Borrower and the Administrative Agent, substantially in the form of Exhibit F, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 1.01 shall be deemed to be amended to so increase the Commitment of such Lender.
(c) Any additional bank, financial institution or other entity which the Borrower selects to offer participation in the increased Commitment and which elects to become a party to this Agreement and provide a Commitment in an amount so offered and accepted by it pursuant to Section 1.05(a) shall execute an Additional Lender Supplement with the Borrower and the Administrative Agent, substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (herein called an “Additional Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and Schedule 1.01 shall be deemed to be amended to add the name and Commitment of such Additional Lender; provided that the Commitment of any such Additional Lender shall be in an amount not less than $5,000,000.
(d) Notwithstanding anything to the contrary in this Section 1.05, (i) in no event shall any transaction effected pursuant to this Section 1.05 cause the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”)to exceed $400,000,000, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
and (ii) no Lender shall have any obligation to increase its Commitment unless it agrees to do so in its sole discretion.
(e) Subject to the increase in and/orterms and conditions hereof, each Additional Lender and each Lender that executes a Commitment Increase Supplement or Additional Lender Supplement, as the case may be, assumption of Requested Additional Commitments is pursuant to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments Section 1.05(b) (including all previous increases in and/or assumptions of Requested Additional Commitmentseach, an “Accordion Lender”) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify on the date upon which its Commitment or increased Commitment, as the Requested Additional Commitment is anticipated to be made available to the Borrower case may be, becomes effective (the its “Additional Commitment Accordion Effective Date”).
(C) Upon receipt , make a Revolving Loan to the Borrower, and the Borrower shall prepay outstanding Revolving Loans owing to the Lenders other than such Accordion Lender(s), in amounts such that, after giving effect to the making of any notice pursuant such Revolving Loan by such Accordion Lender and the prepayment of outstanding Revolving Loans owing to clause 3.2(A) aboveLenders other than such Accordion Lender(s), the Facility Agent shall promptly notify the Lenders aggregate principal amount of such request, and on or before the Additional Commitment Date, Revolving Loans owing to each Lender shall inform equal such Lender’s Commitment Percentage (determined after giving effect to the Facility Agent new or increased Commitment of the amount in the Base Currency such Accordion Lender(s)) of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional CommitmentRevolving Loans outstanding on such Accordion Effective Date. On such Accordion Effective Date, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in shall pay to the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on Administrative Agent, for the terms and conditions of this Agreement and the Borrower notifies the Facility Agent account of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicableLenders, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party amounts owing to the Finance Documents (and be entitled such Lenders pursuant to share Section 2.12 in the Security created under the Security Documents in accordance with the terms respect of the Finance Documents) if Revolving Loans prepaid on such Additional Lender accedes Accordion Effective Date pursuant to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receiptthis Section 1.05(e).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (Aa) KECI Subject to the terms and conditions hereof, at any time after the Closing Date and prior to Maturity Date, provided that no Event of Default has occurred and is continuing and that the Borrower is in pro forma compliance with the financial covenants in Section 5.1(1) (assuming the full incurrence and application of the new Indebtedness in question), the Borrower may request that the Total Lenders or any other Persons provide additional Commitments be increased by the provision of additional commitments under the Facility (each such increase being a each, an “Requested Additional Commitment”)) which shall serve to increase the aggregate existing Commitments, such that further Borrowings under the Revolving Credit become available thereunder upon identical terms and conditions.
(b) Any Additional Commitment shall be documented pursuant to an Additional Commitment Agreement and executed by the Borrower, the Person providing written notice the Additional Commitment (the “Additional Lender”) and the Administrative Agent. Upon satisfaction of the conditions precedent set out therein, the Additional Commitment in question shall become effective, and (i) the Agent shall promptly notify each Lender as to such agreement, and (ii) Schedule 2.1 shall be deemed to be modified accordingly.
(c) Notwithstanding anything to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,contrary in this Agreement:
(i) no Additional Commitment shall require the consent of any Lender other than the Additional Lender in question, but each Additional Commitment Notice shall be delivered prior to require the expiry approval of the Availability PeriodAdministrative Agent and the Issuing Bank, not to be unreasonably withheld;
(ii) the increase no Lender shall have any obligation to acquire any Additional Commitment unless it agrees to do so in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; andits sole discretion;
(iii) no Event of Default is continuing Lender shall have the right to acquire any Additional Commitment or would arise as a result receive prior notice thereof, regardless of the provision of fact that its share in the Requested Additional Commitment; andaggregate Commitments is reduced thereby;
(iv) the terms aggregate amount of the Requested all Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.Commitments shall not exceed U.S.$50,000,000;
(Bv) Each no amount of Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilledCommitments requested at any one time shall be less than U.S.$10,000,000; and
(iivi) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree pay such up-front, arrangement or other fees as may be agreed by the Administrative Agent and any Additional Lender in connection with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any provision by such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the an Additional Commitment Date; andCommitment;
(iid) KECI shall procure that on or prior to the Additional Commitment DateFor greater certainty, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the any Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share pro rata in any prepayments made by the Security created Borrower pursuant to Section 2.9, and the obligations of the Credit Parties under any such Additional Commitment shall be secured pari passu with the other obligations of the Credit Parties under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (A) KECI KEL may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to notify the Facility Agent (such notice being an “Additional Commitment Notice”) that it has agreed with any Lender or any other bank or financial institution (in each case, an “Additional Lender”) to increase the Total Commitments by the provision of additional commitments under the Facility (each such increase or, as the case may be, assumption in commitments being an “Additional Commitment”), provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,00040,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).; and
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, In the Facility Agent shall promptly notify the Lenders of such request, and on or before the event that an Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees Party to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the sameAgreement, on or prior to the Additional Commitment Date; and
(ii) KECI KEL shall procure that on or prior to the Additional Commitment Date, such Additional Lender Lender: delivers a Lender Accession Notice in the form set out in Schedule 1 12 (The Original LenderForm of Lender Accession Notice) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation Commitment to the Facility Agent.
(ED) Subject to the conditions in paragraphs paragraph (B) and (DC) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation Commitment for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation Commitment shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation Commitment provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent Borrower either:
(a) making utilisations from the Committed Additional Participation Commitment in priority to utilisations from Commitments under the Facility or to effect a prepayment under the Facility to the existing Lenders (which amount may be redrawn by the Borrower); or
(b) making its first utilisation under the Additional Commitment on the last day of the then Interest Period, in each case to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FE) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents Documents, and benefit from the Deed of Guarantee, in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Kosmos Energy Ltd.)
Additional Commitments. Borrower shall have the right, no more than two (A2) KECI may times during the term of the Loan, to request that the Total Administrative Agent permit additional Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Five Million Dollars (each such increase being a $5,000,000.00) in excess of the Lenders’ then outstanding Commitments (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed Seventy Million Dollars ($70,000,000.00).
(b) Any such request shall be made by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to Administrative Agent, which notice shall set forth such details with respect thereto as are reasonably requested by Administrative Agent. Upon receipt of the Additional Commitment Notice, Administrative Agent shall notify the then existing non-Defaulting Lenders of the terms of such Additional Commitment Notice and each such Lender’s pro rata share (in proportion to the Applicable Percentages of the non-Defaulting Lenders) of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the non-Defaulting Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata in proportion to the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. No Defaulting Lender may accept any portion of any Additional Commitment Amount. Administrative Agent shall notify Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) Borrower issuing additional or substitute Notes to the increase in and/orAccepting Lenders and reaffirming its obligations under the original Notes and Loan Documents, as the case may beamended pursuant to this Section 10.2, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result the Accepting Lenders that have agreed to increase their respective Commitments paying to Administrative Agent (on behalf of the provision of the Requested Additional Commitment; and
(ivother Lenders) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated aggregate amount determined by Administrative Agent to be made available necessary so that each Accepting Lender’s pro rata share of outstanding Loans and participations in L/C Obligations and Swingline Loans matches the ratio of its increased Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed all increased Commitments after giving effect to such Additional Participation is less than the Requested Additional CommitmentCommitment Amount and, after giving effect to their receipt of such payment, the Borrower may agree with any bank or financial institution which is not a Lender other Lenders’ pro rata shares of outstanding Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Commitments to the aggregate amount of all increased Commitments after giving effect to such Additional Commitment Amount, (each an “Additional Lender”iv) that they will participate Borrower, the Accepting Lenders and Administrative Agent executing such other documents evidencing such adjustments in the Facility provided that:
Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the foregoing, and (vii) Borrower paying to the Sole Lead Arranger, the Sole Bookrunner and the Accepting Lenders such fees as are due in connection with the Additional Commitment Amount. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.2 unless, (i) on the date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 2.22 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 5.1 after giving effect to any Loans to be made on such date and the Additional Lender Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 5.1) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective. Each of the REIT and Borrower agrees to take such further reasonable action as may reasonably be requested by Administrative Agent in connection with any request pursuant to this Section 10.2.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Amount in accordance with clause (b) above, Borrower may designate one or more proposed lenders to Administrative Agent to become a Lender Lenders under this Agreement with respect to such balance of the Additional Commitment Amount, subject in each case to the prior consent by Administrative Agent, the Swingline Lender and make available a the L/C Issuer. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) Borrower issuing new Notes to the new Lenders and reaffirming its obligations under the original Notes and Loan Documents, as amended pursuant to this Section 10.2, (iii) such New Lenders and Accepting Lenders paying to Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by Administrative Agent to be necessary so that such new Lender’s and, if applicable, Accepting Lenders’ respective pro rata shares of outstanding Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their Commitments as so increased to the aggregate amount of all increased Commitments after giving effect to such Additional Commitment Amount and, after giving effect to their receipt of such payment, the other Lenders’ pro rata shares of outstanding Loans and participations in L/C Obligations and Swingline Loans matches the ratio of their respective Commitments to the aggregate amount of all increased Commitments after giving effect to such Additional Commitment Amount, (iv) Borrower, the new Lenders, any Accepting Lenders (if applicable) and Administrative Agent executing such other documents evidencing the addition of the new Lenders as Lenders hereunder and the adjustment of the Commitments and the Loans (including, without limitation, modifications to the Security Documents) as shall be reasonably acceptable to Borrower, the new Lenders, the Accepting Lenders and Administrative Agent and, if the Additional Commitment Amount involves an increase in the Commitments, the Swingline Lender and the L/C Issuer, (v) the Guarantors executing and delivering reaffirmations of the Guaranties in form and substance reasonably satisfactory to Administrative Agent, (vi) Borrower paying all of Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing, and (vii) Borrower paying to the Sole Lead Arranger, the Sole Bookrunner, the new Lenders and the Accepting Lenders such fees as are due in connection with the Additional Commitment Amount. Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with clause (vii) of the immediately preceding sentence. Notwithstanding the foregoing, no Additional Commitment Amount shall become effective under this Section 10.2 unless, (i) on the terms date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request, (y) the conditions set forth in Section 2.22 shall be satisfied, and (z) the REIT and Borrower shall be in pro forma compliance with the covenants set forth in Section 5.1 after giving effect to any Loans to be made on such date and the Additional Commitment Amount, and the application of the proceeds therefrom as if made and applied on such date, and, Administrative Agent shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in reasonable detail showing pro forma compliance with the covenants in Section 5.1) and executed by a Responsible Officer of the REIT and Borrower. The Administrative Agent shall provide written notice to all of the Lenders when the Additional Commitment Amount becomes effective.
(d) Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes Administrative Agent (on behalf of the Lenders) to enter into amendments and modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Loan Agreement (GTJ REIT, Inc.)
Additional Commitments. (Ai) KECI may request that Effective as of the Total Commitments be increased Amendment Effective Date, each Person listed on Schedule 1 hereto (each, an “Increasing Lender” and collectively, the “Increasing Lenders”) agrees that, on and as of the Amendment Effective Date, the Commitment of such Increasing Lender shall increase by the provision amount set forth opposite its name on Schedule 1 (the amount of additional commitments under the Facility (each such increase being a referred to herein as such Increasing Lender’s “Requested Additional Commitment”), by providing written notice to the Facility Agent . The parties hereto acknowledge and agree that: (such notice being an “Additional Commitment Notice”) provided that,
(ia) the Additional Commitments shall constitute Commitments in respect of the Facility, (b) the Commitment Notice Percentage of each Increasing Lender shall be delivered calculated to include its Additional Commitment and (c) any Additional Loans made by each Increasing Lender pursuant to such Increasing Lender’s Additional Commitment shall be included for purposes of calculating such Increasing Lender’s Aggregate Outstanding Revolving Credit to the extent of such Additional Loan then outstanding.
(a) Upon the effectiveness of the Additional Commitments, each Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Increasing Lender, and each such Increasing Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations under the expiry Amended Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the Availability Period;
aggregate outstanding (iix) participations under the increase Amended Credit Agreement in and/orLetters of Credit and (y) participations under the Amended Credit Agreement in Swing Line Loans held by each Lender (including each such Increasing Lender) will equal such Lender’s Commitment Percentage and (b) on the Amendment Effective Date, each Increasing Lender shall make a Revolving Loan to the Parent Borrower in such amount as determined by the Administrative Agent to be necessary to ensure that all outstanding Revolving Loans shall be held by the Lenders ratably in accordance with their new Commitment Percentages. Revolving Loans made pursuant to clause (b) of the preceding sentence shall be allocated ratably to each outstanding Borrowing and shall bear interest at the same rates, and have the same Interest Periods, as the case may be, assumption of Requested Additional Commitments is Borrowings to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataallocated.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Additional Revolving Credit Amendment and Agreement (US Foods Holding Corp.)
Additional Commitments. (Aa) KECI may request that On the Total Commitments be increased by the provision of additional commitments under the Facility Third Amendment Effective Date (each such increase being a “Requested Additional Commitment”), by providing written notice as defined below) and subject to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
terms and conditions set forth herein, (i) each Increasing/Joinder Lender party hereto hereby agrees to provide its respective New Revolving Commitments in the Additional Commitment Notice shall be delivered prior to form of Revolving Credit Commitments under the expiry of the Availability Period;
Amended Credit Agreement, as set forth on Schedule A hereto and (ii) each New Swing Line Euro Lender hereto hereby agrees to provide its respective Swing Line Euro Commitments under the Amended Credit Agreement, as set forth on Schedule B hereto.
(b) As of the Third Amendment Effective Date, (i) Schedule 2.01 to the Credit Agreement shall be replaced by the form of Schedule 2.01 to this Amendment (which shall include the amounts set forth on Schedule A hereto) and (ii) Schedule 2.05 to the Credit Agreement shall be replaced by the form of Schedule 2.05 to this Amendment (which shall include the amounts set forth on Schedule B hereto).
(c) On the Third Amendment Effective Date, subject to the terms and conditions set forth herein, each of the Lenders with existing Revolving Credit Commitments shall assign to each of the Increasing/Joinder Lenders, and each of the Increasing/Joinder Lenders shall purchase from each of the Lenders with existing Revolving Credit Commitments, at the principal amount thereof, such interests in the Outstanding Amount of Revolving Credit Loans on the Third Amendment Effective Date as shall be necessary in order that after giving effect to all such assignments and purchases, the principal amount of Revolving Credit Loans made by each Lender will be in the amount of such Lender’s Pro Rata Share (after giving effect to the New Revolving Commitments in accordance with this Amendment) of the Outstanding Amount of the Revolving Credit Loans.
(d) Upon the Third Amendment Effective Date and the assignment and purchase described in Section 2(c) hereof, each Increasing/Joinder Lender shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided participation in all outstanding Swing Line Loans and Letters of Credit in accordance with such Increasing/Joinder Lender’s Pro Rata Share thereof (after giving effect to the increase in and/or, as the case may be, assumption of Requested Additional Revolving Credit Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; andaccordance with this Amendment).
(iiie) no Event of Default is continuing or would arise If, as a result of the provision assignment and purchase of the Requested Additional Commitment; andRevolving Credit Loans provided for in Section 2(c) hereof, any payment of Eurocurrency Rate Loans occurs on a day which is not the last day of the applicable Interest Period, the Company will pay to the Administrative Agent for the benefit of any Lender holding a Eurocurrency Rate Loan any loss or cost incurred by such Lender therefrom in accordance with Section 3.06 of the Credit Agreement.
(ivf) the terms of the Requested Additional Each New Revolving Commitment shallshall be deemed for all purposes a Revolving Credit Commitment, and each Loan made thereunder shall be deemed, for all purposes of this Agreementpurposes, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower a Revolving Credit Loan (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional ParticipationNew Revolving Credit Loans”). The Facility Agent shall promptly notify KECI terms and provisions of the details of each Committed Additional Participation.
(D) If, on New Revolving Credit Loans shall be identical to those set forth in the Additional Credit Agreement for Revolving Credit Loans. Each New Swing Line Euro Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional shall be deemed for all purposes a Swing Line Commitment for Swing Line Loans denominated in Euros and a Swing Line Euro Commitment, the Borrower may agree with any bank or financial institution which is not and each Loan made thereunder shall be deemed, for all purposes, a Lender (each an “Additional Lender”) that they will participate Swing Line Loan denominated in the Facility provided that:
(i) any such Additional Lender agrees to become Euros and a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata Swing Line Euro Loan (the “New Commitment RebalancingSwing Line Euro Loans”) will be made, at ). The terms and provisions of the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations Swing Line Euro Loans shall be made pro rata.
(F) Each Additional Lender shall become a party identical to the Finance Documents (and be entitled to share those set forth in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance DocumentsAmended Credit Agreement for Swing Line Euro Loans.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Information Services, Inc.)
Additional Commitments. (A) KECI At any time and from time to time on and after the Restatement Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $9,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$75,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an "Assuming Lender") no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender's Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. Subject to the terms and conditions hereof and of the Unit Subscription Agreement:
(Aa) KECI may request that Each Member listed on Schedule II with a dollar amount set forth under column (2) opposite such Member’s name (each, a “Committed Member”) agrees to make, upon the Total Commitments issuance of Capital Calls meeting the requirements of this Article 5, additional cash Capital Contributions (“Commitment Contributions”) in an amount not to exceed in aggregate the amount set forth opposite the name of such Committed Member under column (2) on Schedule II (the “Additional Commitment” of such Committed Member) in exchange for Series A-2 Preferred Units. The amount, at a particular time, by which a Committed Member’s Additional Commitment exceeds the total amount of the Commitment Contributions previously made by such Committed Member pursuant to this Article 5 shall be the “Remaining Commitment” of such Committed Member at such time. For the avoidance of doubt, in no event shall any Member’s Additional Commitment or Remaining Commitment be increased by without such Member’s prior written consent and in no event shall any Member be obligated at any time to make Capital Contributions in excess of its Remaining Commitment as of the provision time of additional commitments under such Capital Call less any amounts required to be funded pursuant to then outstanding Capital Calls.
(b) The Management Committed Members shall have the Facility option to increase their Additional Commitments in accordance with this Section 5.2(a). During the 31-day period beginning on December 1 and ending on December 31 of each of the years 2008, 2009 and 2010 (each such increase being 31-day period a “Requested Additional CommitmentManagement Committed Member Exercise Period”), each Management Committed Member shall have the right, but not the obligation (a “Management Committed Member Option”), by providing delivery of written notice to the Facility Agent (Company prior to the expiration of such Management Committed Member Exercise Period, to increase his Additional Commitment by the amount specified in such notice being provided that the aggregate amount specified in all notices delivered by such Management Committed Member pursuant to this Section 5.2(a) shall not exceed 100% of such Management Committed Member’s Total Commitment as of the Effective Date and shall not exceed the Remaining Commitment of Warburg Pincus X as of the end of the applicable 31-day period. The delivery of a notice of election under this Section 5.2(a) by a Management Committed Member shall constitute an “irrevocable commitment to fund such increased Additional Commitment. Upon receipt by the Company from a Management Committed Member of a timely delivered and properly executed notice of election, the Additional Commitment Notice”of such Management Committed Member shall be increased dollar-for-dollar by the amount specified in such notice and the Additional Commitment of Warburg Pincus X shall be decreased dollar-for-dollar (which decrease shall be allocated pro rata between the entities comprising Warburg Pincus X) provided that,
by the amount specified in such notice. If a Management Committed Member exercises a Management Committed Member Option pursuant to this Section 5.2(a), the first Capital Call following exercise of such a Management Committed Member Option shall be apportioned so that after such Management Committed Member makes the Commitment Contributions required by it pursuant to the Call Notice related to such Capital Call (i) the Additional quotient (expressed as a percentage) obtained by dividing (a) the total amount of Commitment Notice shall Contributions such Management Committed Member will have funded immediately after such Capital Call by (b) the total amount of Commitment Contributions all Committed Members will have funded immediately after such Capital Call will be delivered prior equal to the expiry of the Availability Period;
(ii) the quotient (expressed as a percentage) obtained by dividing (x) such Management Committed Member’s Total Commitment (calculated by including the increase in and/or, as the case may be, assumption of Requested such Management Committed Member’s Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise Commitment as a result of the provision exercise of the Requested Additional Commitment; and
such Management Committed Member Option) by (ivy) the terms aggregate Total Commitments of all Committed Members. Notwithstanding the Requested Additional Commitment shallforegoing, for all purposes the Board, in its sole discretion, shall be entitled, by delivery of this Agreement, be treated pursuant written notice to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Management Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, Members on or prior to the December 1 of each Management Committed Member Exercise Period, to postpone the Management Committed Members’ right to exercise of any Management Committed Member Option for a period not to exceed 150 days from the expiration of the Management Committed Member Exercise Period if the Company is contemplating any material transaction, such notice to include a general explanation of the reason for such postponement. Following the expiration of any such postponement period, each Management Committed Member shall have the right to exercise his postponed Management Committed Member Option in accordance with this Section 5.2(a), provided that the Management Committed Member Exercise Period for such Management Committed Member Option shall begin on the first day after the expiration of such postponement period and shall end on the 31st day after the expiration of such postponement period. All increases and decreases in Additional Commitment Date; andCommitments made pursuant to this Section 5.2(a) shall be effective as of the expiration date of the applicable Management Committed Member Exercise Period (giving effect to any postponement of a Management Committed Member Option).
(iic) KECI shall procure that on or prior In connection with any adjustment to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf Commitments of the Additional Lender and specifying Committed Members in connection with the reallocation of Future Series A-2 Preferred Units to employees of the Company or its Subsidiaries (including members of the Management Team) or non-employee Managers of the Company (each such employee or Manager, a “Reallocated Committed Additional Participation Member”) pursuant to Section 3.1 of the Unit Subscription Agreement, the Board, in its sole discretion, may elect to apportion the first Capital Call following such adjustment in a manner such that after such Reallocated Committed Member makes the Commitment Contributions required by it pursuant to the Facility Agent.
(E) Subject Call Notice related to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
such Capital Call (i) the Additional Lender shall make available quotient (expressed as a percentage) obtained by dividing (a) the relevant total amount of Commitment Contributions such Reallocated Committed Additional Participation for Utilisation under Member will have funded immediately after such Capital Call by (b) the Facility in accordance with the terms total amount of this Agreement (as amended);
Commitment Contributions all Committed Members will have funded immediately after such Capital Call will be equal to (ii) the quotient (expressed as a percentage) obtained by dividing (x) such Reallocated Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
Member’s Total Commitment by (iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(iy) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result aggregate Total Commitments of that accession and with the Commitment specified by it as its all Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Members.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Laredo Petroleum, Inc.)
Additional Commitments. (a) The Company shall have the right, at any time and from time to time, after the Effective Date and prior to the Commitment Expiration Date to request (so long as no Default or Event of Default is then in existence or would result therefrom) on one or more occasions that one or more existing Lenders (and/or one or more other Eligible Persons which will become Lenders as provided pursuant to clause (v) below) provide Additional Commitments; it being understood and agreed, however, that (i) no existing Lender shall be obligated to provide an Additional Commitment as a result of any request by the Company, (ii) any existing Lender may provide an Additional Commitment without the consent of any other Lender, (iii) (A) KECI each provision of Additional Commitments on a given date pursuant to this Section 2.16 shall be in a minimum aggregate amount (for all Additional Commitment Lenders (including, in the circumstances contemplated by clause (v) below, Eligible Persons who will become Additional Commitment Lenders) of at least $25,000,000 (or such lesser amount as is acceptable to the Administrative Agent) and (B) the aggregate Commitments for all Lenders hereunder shall not exceed $400,000,000, (iv) all up-front fees payable to any Additional Commitment Lender shall be as set forth in the relevant Additional Commitment Agreement, (v) the Company may request that Additional Commitments from Eligible Persons which are reasonably acceptable to the Total Administrative Agent and each Fronting Lender, (vi) all Additional Commitments provided on a given date pursuant to this Section 2.16 shall have the same terms and conditions as all then existing Commitments (other than with respect to upfront fees) and shall be increased added to such existing Commitments in accordance with clause (b) of this Section 2.16 below and (vii) all actions taken by the provision Account Party pursuant to this Section 2.16 shall be done in coordination with the Administrative Agent. No consent of additional commitments under any Lender (other than the Facility Lenders providing the Additional Commitments) shall be required for any Additional Commitments made pursuant to this Section 2.16.
(each such increase being a “Requested b) The effectiveness of Additional Commitment”), by providing written notice Commitments pursuant to this Section 2.16 shall be subject to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
occurrence of the following: (i) the Additional Commitment Notice shall be delivered prior to Company, each Designated Subsidiary Account Party, the expiry of the Availability Period;
(ii) the increase in and/orAdministrative Agent and each existing Lender or Eligible Person, as the case may be, assumption which agrees to provide an Additional Commitment (each, an “Additional Commitment Lender”) shall have executed and delivered to the Administrative Agent an Additional Commitment Agreement substantially in the form of Requested Exhibit E or such other form reasonably acceptable to the Administrative Agent, subject to such modifications in form and substance reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Commitments is Commitment Lender’s Additional Commitment to take effect before occur upon delivery of such Additional Commitment Agreement to the expiry Administrative Agent, the payment of any fees required in connection therewith and the satisfaction of the Availability Period other conditions set forth in this Section 2.16 to the reasonable satisfaction of the Administrative Agent), (ii) all Several Letters of Credit outstanding at such time shall have been returned by each respective beneficiary thereunder to the respective Issuing Agent and the maximum aggregate amount shall either have been cancelled and/or exchanged for new or amended Several Letters of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Credit which give effect to such Additional Commitments) shall not exceed US$50,000,000; and
, and such Additional Commitment Lenders, (iii) no Event if such Additional Commitment Lender is not a United States person (as such term is defined in Section 7701(a)(3) of Default is continuing the Code) for U.S. Federal income tax purposes or would arise as otherwise constitute a result of Foreign Lender, such Additional Commitment Lender shall have provided to the provision of Company the Requested Additional Commitment; and
appropriate documentation described in Section 2.12(e), (iv) the terms Company and each Designated Subsidiary Account Party shall have delivered to the Administrative Agent resolutions authorizing the incurrence of the Requested Additional Commitment shall, for all purposes of this Agreement, obligations to be treated incurred pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, and (v) the Borrower may agree with any bank or financial institution which is not a Lender (Company and each Designated Subsidiary Account Party shall have delivered to the Administrative Agent an “Additional Lender”) that they will participate opinion, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Company and such Designated Subsidiary Account Party reasonably satisfactory to the Administrative Agent and dated such date, covering certain matters similar to those set forth in the Facility provided that:
(i) any such Additional Lender agrees opinions of counsel delivered to become a Lender under this Agreement and make available a Commitment the Lenders on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause Effective Date pursuant to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Five Year Secured Letter of Credit Facility Agreement (Validus Holdings LTD)
Additional Commitments. (Aa) KECI The Company shall have the right at any time and from time to time after the Restatement Effective Date and prior to the Final Maturity Date to request (so long as no Default or Event of Default is then in existence or would result therefrom) on one or more occasions that one or more Additional Commitment Banks (and/or one or more other Persons which will become Additional Commitment Banks as provided pursuant to clause (vi) below) provide Additional Commitments; it being understood and agreed, however, that (i) no Additional Commitment Bank shall be obligated to provide an Additional Commitment as a result of any request by the Company, (ii) until such time, if any, as (x) such Additional Commitment Bank has agreed in its sole discretion to provide an Additional Commitment and executed and delivered to the Administrative Agent an Additional Commitment Agreement in respect thereof as provided in Section 1.16(b) and (y) such other conditions set forth in Section 1.16(b) shall have been satisfied, such Additional Commitment Bank shall not be obligated to make Revolving Loans or participate in Letters of Credit, in excess of the amounts provided for herein, before giving effect to such Additional Commitments provided pursuant to this Section 1.16, (iii) any Additional Commitment Bank (and/or one or more other Persons which will become Additional Commitment Banks as provided pursuant to clause (vi) below) may so provide an Additional Commitment without the consent of any other Additional Commitment Bank (it being understood and agreed that the consent of the Administrative Agent and each Letter of Credit Issuer (such consent (in either case) not to be unreasonably withheld or delayed) shall be required if any such Additional Commitments are to be provided by a Person which is not already an Additional Commitment Bank), (iv) (x) each provision of Additional Commitments on a given date pursuant to this Section 1.16 shall be in a minimum aggregate amount (for all Additional Commitment Banks (including, in the circumstances contemplated by clause (vi) below, banks or other financial institutions who will become Additional Commitment Banks)) of at least $1,000,000 and (y) the aggregate amount of Additional Commitments provided pursuant to this Section 1.16 shall not exceed $100,000,000, (v) the up-front fees payable to any Person providing an Additional Commitment in accordance with this Section 1.16 shall be as set forth in the relevant Additional Commitment Agreement, (vi) if, on or after the tenth Business Day following the request by the Company of the then existing Additional Commitment Banks to provide Additional Commitments pursuant to this Section 1.16 on the terms to be applicable thereto, the Company has not received Additional Commitments in an aggregate amount equal to that amount of the Additional Commitments which the Company desires to obtain pursuant to such request (as set forth in the notice provided by the Company to the Administrative Agent as provided above), then the Company may request that Additional Commitments from other banks or financial institutions (unless otherwise agreed by the Company and the Administrative Agent) in an aggregate amount equal to such deficiency on terms which are no more favorable to such other bank or financial institution in any respect than the terms offered to the existing Additional Commitment Banks, and (vii) all actions taken by the Company pursuant to this Section 1.16 shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Additional Commitments pursuant to this Section 1.16, (i) the Company, the Administrative Agent and each such Additional Commitment Bank or other bank or financial institution which agrees to provide an Additional Commitment (each, an “Additional Bank”) shall execute and deliver to the Administrative Agent an Additional Commitment Agreement substantially in the form of Exhibit E, subject to such modifications in form and substance reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the effectiveness of such Additional Bank’s Additional Commitment to occur upon delivery of such Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith and the satis- faction of the other conditions in this Section 1.16 to the reasonable satisfaction of the Administrative Agent), (ii) if such Additional Bank is not a United States person (as such term is defined in Section 7701(a)(3) of the Code) for U.S. Federal income tax purposes, such Additional Bank shall provide to the Company the appropriate Internal Revenue Service documentation described in Section 4.04, (iii) the Company and the Designated Subsidiary Borrowers shall deliver to the Administrative Agent resolutions authorizing the incurrence of the Obligations to be incurred pursuant to each Additional Commitment, together with evidence of good standing of the Company and each Designated Subsidiary Borrower (if requested) and (iv) the Company and each Designated Subsidiary Borrower shall deliver to the Administrative Agent an opinion, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to each of the Company and each Designated Subsidiary Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering such matters similar to those set forth in the opinions of counsel delivered to the Banks on the Restatement Effective Date pursuant to Section 5.01(d) and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Additional Commitment Bank as to the occurrence of each Additional Commitment Date, and (x) on each such date, the Total Commitments Commitment under, and for all purposes of, this Agreement shall be increased by the provision aggregate amount of additional commitments under the Facility such Additional Commitments and (y) on each such increase being a “Requested date, Schedule I shall be deemed modified to reflect the revised Additional Commitment”), by providing written notice Commitments of the affected Additional Commitment Banks. Notwithstanding anything to the Facility contrary contained in this Agreement, in connection with any increase in the Total Commitment pursuant to this Section 1.16, the Company and each Designated Subsidiary Borrower shall, in coordination with the Administrative Agent and the Banks, repay outstanding Revolving Loans of certain Banks and, if necessary, incur additional Revolving Loans from other Banks, in each case so that such Banks participate in each Borrowing of such Revolving Loans pro rata on the basis of their Commitments (such notice being an “Additional Commitment Notice”) provided that,
(i) after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the Additional Commitment Notice type described in Section 1.12 incurred by the Banks in connection with the repayment of Revolving Loans contemplated by this Section 1.16 shall be delivered prior to for the expiry account of the Availability Period;
(ii) Company or the increase in and/orapplicable Designated Subsidiary Borrower, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Additional Commitments. (Aa) KECI In the event that the Borrowers wish to increase the Commitments at any time when no Event of Default has occurred and is continuing, they shall notify the Administrative Agent in writing of the amount (the “Proposed Increase Amount”) of such proposed increase (such notice, a “Commitment Increase Notice”); provided that the aggregate amount of any such increase in Commitments shall be at least $10,000,000. The Borrowers may request offer to the existing Lenders and, with the consent of the Administrative Agent, the Swingline Lender and any Issuing Lenders (which consents shall not be unreasonably withheld), one or more additional banks, financial institutions or other entities the opportunity to participate in all or a portion of the Proposed Increase Amount pursuant to Section 1.05(b).
(b) Any Lender that accepts an offer to it by the Borrowers to increase its Commitment pursuant to Section 1.05
(a) shall, in each case, execute a Commitment Increase Supplement with each Borrower and the Administrative Agent, substantially in the form of Exhibit F, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 1.01 shall be deemed to be amended to so increase the Commitment of such Lender.
(c) Any additional bank, financial institution or other entity which the Borrowers select to offer participation in the increased Commitment and which elects to become a party to this Agreement and provide a Commitment in an amount so offered and accepted by it pursuant to Section 1.05(a) shall execute an Additional Lender Supplement with each Borrower and the Administrative Agent, substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (herein called an “Additional Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and Schedule 1.01 shall be deemed to be amended to add the name and Commitment of such Additional Lender; provided that the Commitment of any such Additional Lender shall be in an amount not less than $5,000,000.
(d) Notwithstanding anything to the contrary in this Section 1.05, (i) in no event shall any transaction effected pursuant to this Section 1.05 cause the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”)to exceed $900,000,000, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) in no event shall the aggregate principal amount of Loans and L/C Obligations owed by any Borrower exceed such Borrower’s Sublimit and (iii) no Lender shall have any obligation to increase its Commitment unless it agrees to do so in and/orits sole discretion.
(e) Subject to the terms and conditions hereof, each Additional Lender and each Lender that executes a Commitment Increase Supplement or Additional Lender Supplement, as the case may be, assumption of Requested Additional Commitments is pursuant to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments Section 1.05(b) (including all previous increases in and/or assumptions of Requested Additional Commitmentseach, an “Accordion Lender”) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify on the date upon which its Commitment or increased Commitment, as the Requested Additional Commitment is anticipated to be made available to the Borrower case may be, becomes effective (the its “Additional Commitment Accordion Effective Date”).
(C) Upon receipt , make Revolving Loans to each Borrower, and each Borrower shall prepay outstanding Revolving Loans owing to the Lenders other than such Accordion Lender(s), in amounts such that, after giving effect to the making of any notice pursuant such Revolving Loans by such Accordion Lender and the prepayment of outstanding Revolving Loans owing to clause 3.2(A) aboveLenders other than such Accordion Lender(s), the Facility Agent shall promptly notify the Lenders aggregate principal amount of such request, and on or before the Additional Commitment Date, Revolving Loans owing to each Lender shall inform equal such Lender’s Commitment Percentage (determined after giving effect to the Facility Agent new or increased Commitment of the amount in the Base Currency such Accordion Lender(s)) of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than Revolving Loans outstanding on such Accordion Effective Date. On such Accordion Effective Date, each Borrower shall pay to the Requested Additional CommitmentAdministrative Agent, for the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent account of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicableLenders, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party amounts owing to the Finance Documents (and be entitled such Lenders pursuant to share Section 2.12 in the Security created under the Security Documents in accordance with the terms respect of the Finance Documents) if Revolving Loans prepaid on such Additional Lender accedes Accordion Effective Date pursuant to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receiptthis Section 1.05(e).
(Hf) The Facility Agent shall only be obliged to execute At the time the Borrowers submit a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Commitment Increase Notice, each other Finance Party and the Obligors they shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all advise the Lenders immediately prior to of the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”proposed new Sublimits.
Appears in 1 contract
Additional Commitments. (A) KECI At any time prior to the Maturity Date, Borrower and Time Warner, acting together, may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”)from time to time, by providing written notice to the Facility Administrative Agent (which shall promptly deliver a copy to the Lenders) executed by Borrower and Time Warner and one or more financial institutions that qualify as Eligible Assignees (any such financial institution, which may include any Lender, referred to in this Section as an “Incremental Facility Lender”) add one new tranche of term facilities by requesting new term loan commitments to be added (any such new tranche an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Loans”) in an amount for each Incremental Lender (which shall not be less than $5,000,000) set forth in such notice being an “Additional Commitment Notice”and in aggregate principal amount not to exceed the lesser of (x) $261,034,000 and (y) the then outstanding amount of the 2015 Notes; provided that,
that (i) the Additional Commitment Notice no Lender shall be delivered prior have any obligation to the expiry of the Availability Period;
provide any Incremental Loans pursuant to this Section, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry proceeds of the Availability Period and Incremental Loans shall only be used for CME to repay the maximum aggregate amount principal of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
the 2015 Notes, (iii) no Event of Default is continuing or would arise as each Incremental Facility Lender, if not already a result of Lender hereunder, shall be reasonably satisfactory to the provision of the Requested Additional Commitment; and
Administrative Agent (which approval shall not be unreasonably withheld), (iv) the terms of the Requested Additional Commitment shalleach Incremental Facility Lender, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is if not already a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the samehereunder, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to this Agreement by completing and delivering to the Finance Documents Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent, Borrower and Time Warner (an “Accession Agreement”), (v) no Default or Event of Default has occurred and is continuing, (vi) the interest rate applicable to any Incremental Facility will bear an interest rate acceptable to the Incremental Facility Lenders, Borrower and Time Warner, and (vii) the maturity date with respect to any Incremental Loans shall be November 1, 2019. Upon the effectiveness of any Accession Agreement to which any Incremental Lender is a party, (i) such Incremental Facility Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises all rights, benefits and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional privileges accorded a Lender and each Party agrees subject to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days all obligations of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (hereunder and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) Schedule 2.01 shall be deemed to have been amended to reflect the additional Commitment of such Incremental Lender as provided in such Accession Agreement. Incremental Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Facility Amendment”) of this Agreement and, as appropriate, the other similar checks requiredCredit Documents, in each case executed by lawBorrower, regulation or Guarantor and, as appropriate, the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issuesSubsidiary Guarantors, each Incremental Facility Lender participating in relation to the accession such tranche of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party Incremental Loans and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Administrative Agent.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Central European Media Enterprises LTD)
Additional Commitments. (Ai) KECI At any time following the Fourth Amendment Effective Date, the Borrower may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Agent Commitments (any such notice being an increase, the “Additional Commitment NoticeRevolving Facility Commitments”) provided that,
and/or the Term B Loan Commitments (i) any such increase, the “Additional Term Loan Commitments” and together with the Additional Commitment Notice shall be delivered prior to Revolving Facility Commitments, if any, the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested “Additional Commitments) ”). Such notice shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(iiA) specify the date upon (an “Increased Amount Date”) on which the Requested Borrower proposes that the Additional Commitment is anticipated to Commitments and, in the case of Additional Term Loan Commitments, the date for borrowing, as applicable, be made available available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (B) offer each Revolving Facility Lender (in the case of Additional Revolving Facility Commitments) and/or Term B Loan Lender (in the case of Additional Term Loan Commitments) the right to increase its Revolving Facility Commitment and/or Term B Loan Commitment, as applicable, on a pro rata basis. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender, Term B Loan Lender or other financial institution reasonably acceptable to the Administrative Agent (the each, an “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) aboveRevolving Facility Lender,” an “Additional Term Loan Lender” or generally, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate to whom the Additional Commitments have been (in accordance with the Facility provided that:
(iprior sentence) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement allocated and the Borrower notifies the Facility Agent amounts of such allocations; provided that any Lender approached to provide all or a portion of the sameAdditional Commitments may elect or decline, on or prior in its sole discretion, to the provide an Additional Commitment Date; andCommitment.
(ii) KECI Such Additional Commitments shall procure that on or prior to become effective as of such Increased Amount Date, and in the case of Additional Commitment DateTerm Loan Commitments, such Additional Lender delivers Term Loans in respect hereof (“Additional Term Loans”) shall be made on such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Additional Commitments and Loans; (2) after giving effect thereto on a Lender Accession Notice Pro Forma Basis as if such incurrence had occurred on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), the Borrower shall be in compliance with Sections 6.10, 6.11 and 6.15, if and as applicable on such Increased Amount Date (and if Section 6.10 shall not be applicable at such time, the form set out Interest Coverage Ratio shall not be less than 2.00:1.00); and (3) the Borrower shall make any payments required pursuant to Section 2.16 in Schedule 1 (The Original Lender) duly completed and signed on behalf connection with the provisions of the Additional Lender and specifying its Committed Additional Participation to the Facility AgentCommitments.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing The sum of the outstanding Additional Revolving Facility Commitments and outstandings under the principal amount outstanding of Additional Term Loans, when aggregated with the principal amount outstanding of Permitted Notes, shall not exceed $400 million plus the Revolving Facility Commitment Capacity; provided that the Revolving Facility Commitment Capacity shall be utilized only for Additional Revolving Facility Commitments; provided, further, that this limitation shall be increased by (x) $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments (other than Additional Revolving Facility Commitments utilizing Revolving Facility Commitment Capacity) as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the Committed incurrence of Additional Participation Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 2.00 to 1.00 and (y) an additional $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments (other than Additional Revolving Facility Commitments utilizing Revolving Facility Commitment Capacity) as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the incurrence of Additional Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 1.00 to 1.00.
(iv) The all-in-yield of any Additional Term Loans shall be as provided by in the joinder agreement pursuant to which such Additional Lender to ensure Term Loans are established (it being understood that they are pro rata (the “New Commitment Rebalancing”all-in-yield” shall be determined after taking into account original issue discount, assuming a four-year average life, fees, other than bona fide arrangement, underwriting, structuring or similar fees not generally shared with the applicable Lenders, and interest margin and, if the LIBO Rate in respect of any Additional Term Loans includes an interest rate floor greater than the LIBO Rate then applicable to the existing Term B Loans, such interest rate floor shall be equated to interest margin). In the event that the all-in-yield for any Additional Term Loans is greater than the all-in-yield for the Term B Loans (or other term loan previously established as an Additional Term Loan hereunder) by greater than 50 basis points, then the all-in-yield for the Term B Loans (or other term loan previously established as an Additional Term Loan hereunder) will be made, at increased such that after giving effect thereto the Borrower’s election, by all-in-yield for the Facility Agent making utilisations from the Committed Term B Loans (or other term loan established as an Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FTerm Loan hereunder) Each Additional Lender shall become a party plus 50 basis points is equal to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) all-in-yield for the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Term Loans.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (A) KECI At any time and from time to time on and after the Second Restatement Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $16,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$175,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an “Assuming Lender”) no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender’s Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. (Aa) KECI The Company may request at any time confirm that the Total Commitments be increased by the provision of additional commitments under the Facility one or more Lenders or any other bank(s) (each such increase being a “Requested an Accordion Lender) has agreed to commit Additional Commitment”), Commitments by providing written notice delivering an Additional Commitment Notice to the Facility Agent Agent.
(such notice being an “b) Each Additional Commitment Notice”) provided that,Notice is irrevocable and will not be regarded as having been duly completed unless it has been countersigned by each Accordion Lender named therein and it specifies:
(i) the date on which the Additional Commitment Notice shall be delivered prior to the expiry of the Availability PeriodCommitments are confirmed;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing the amount of the Additional Commitments and outstandings under the Facility and the Committed Additional Participation provided by allocated to each Accordion Lender named in the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataNotice.
(Fc) Each By countersigning the Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Commitment Notice:
(i) each Accordion Lxxxxx agrees to commit the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as Commitments set out against its Committed Additional Participationname; and
(ii) that Additional each Accordion Lender shall which is not already a Lender, agrees to become a Party party to this Agreement as a “Lender”.
(Jd) An increase in the Commitments under this Clause 21.5 2.3 shall take effect on the date specified in the Additional Commitment Notice as the date on which the Additional Commitments are confirmed or any later date on which the conditions set out in paragraph (Limitation of responsibility of Existing Lenderse) shall apply mutatis mutandis below are satisfied.
(e) An increase in the Commitments under this clause 3.2 in relation to an Additional Lender as if references in that clause toClause 2.3 will only be effective on:
(i) the execution by the Agent of the Additional Commitment Notice; and
(ii) in relation to an “Existing Lender” were references to all the Lenders Accordion Lender which is not a Lender immediately prior to the relevant increase;, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the Additional Commitments by that Accordion Lender. The Agent shall promptly execute the Additional Commitment Notice and notify the Company and the Accordion Lender upon being so satisfied.
(iif) No Additional Commitment Notice shall become effective at a time when a Utilisation Request has been delivered and the “New Lender” were references to proposed Utilisation Date under that “Additional Lender”; andUtilisation Request has not yet occurred.
(iiig) Upon receipt of a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”duly completed Additional Commitment Notice, the Agent shall inform the Lenders of such receipt.
Appears in 1 contract
Samples: Third Amendment and Restatement Agreement (Alibaba Group Holding LTD)
Additional Commitments. Borrower shall have the right, at any time prior to the Initial Maturity Date, but in any case not more than three (A3) KECI may times, to cause the Administrative Agent to increase the total Commitments up to $700,000,000, subject to the following:
(a) Any request that for increase in the Total total Commitments shall be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,to the Administrative Agent thirty (30) days prior to the date upon which the Borrower shall desire such increase to become effective, and shall set forth (1) the requested amount of the additional commitment (the “Additional Commitment Amount”), which Additional Commitment Amount shall be in the minimum amount of $25,000,000 and an integral multiple of $5,000,000 in excess thereof and (2) such details with respect thereto as are reasonably requested by the Administrative Agent.
(b) The aggregate amount of the Lenders’ Commitments after giving effect to the Additional Commitment Amount shall not exceed $750,000,000.
(c) Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (c) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans and LC Exposure matches the maximum ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Loan Parties, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Loan Parties, the Accepting Lenders, the Administrative Agent and the Issuing Bank, (including v) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower and the Administrative Agent prior to the Administrative Agent commencing its efforts under this paragraph (c), (vi) the Borrower paying the Arranger such fees as shall be agreed to by the Borrower and the Arranger prior to the Administrative Agent commencing its efforts under this paragraph (c) and (vii) the Borrower paying all previous increases of the Administrative Agent’s reasonable and documented out-of-pocket expenses in and/or assumptions connection with the foregoing.
(d) In the event that the Additional Commitment Amount is not achieved pursuant to paragraph (c) above, the Arranger shall use commercially reasonable efforts, with the assistance of Requested the Borrower, to arrange for additional lenders with Commitments aggregating up to the Additional Commitments) Commitment Amount. The Arranger shall submit a list of additional proposed syndicate members to the Borrower for its review and approval, which approval shall not exceed US$50,000,000; and
be unreasonably withheld or delayed. If any such proposed lenders are so approved by the Administrative Agent, the Issuing Bank and the Borrower, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) no Event such new Lenders paying to the Administrative Agent (on behalf of Default is continuing or would arise the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower paying to the Lenders the amounts payable, if any, to such Lenders pursuant to Section 2.16 as a result of the provision prepayment of any such Loans, (v) the Loan Parties, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Requested Additional Commitment; and
Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Bank, (ivvi) the terms Borrower paying the Arranger for the account of each new lender such upfront fees as shall be agreed to by the Borrower and the Arranger prior to the Arranger commencing its efforts under this paragraph (d), (vii) the Borrower paying the Arranger such fees as shall be agreed to by the Borrower and the Arranger prior to the Arranger commencing its efforts under this paragraph (d) and (viii) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the terms of this Agreement in the same manner as the existing Commitmentsforegoing.
(Be) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available Notwithstanding anything to the Borrower (contrary contained in this Agreement or the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Dateother Loan Documents, each Lender shall inform hereby authorizes the Facility Administrative Agent (on behalf of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(DLenders) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility and the Committed Additional Participation provided Loans contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Global Trust, Inc.)
Additional Commitments. (A) KECI At any time and from time to time on and after the Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $9,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$75,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an "Assuming Lender") no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender's Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. Borrower shall have the right, at any time prior to the Initial Maturity Date, but in any case not more than three (A3) KECI may times, to cause the Administrative Agent to increase the total Commitments up to $750,000,000, subject to the following:
(a) Any request that for increase in the Total total Commitments shall be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) to the Administrative Agent ten (10) days (or such shorter period as the Administrative Agent may accept in its reasonable discretion) prior to the date upon which the Borrower shall desire such increase to become effective, and shall set forth (1) the requested amount of the additional commitment (the “Additional Commitment Amount”), which Additional Commitment Amount shall be in the minimum amount of $25,000,000 and an integral multiple of $5,000,000 in excess thereof and (2) such details with respect thereto as are reasonably requested by the Administrative Agent.
(b) The aggregate amount of the Lenders’ Commitments after giving effect to the Additional Commitment Amount shall not exceed $750,000,000.
(c) [reserved]
(d) Upon receipt of the Additional Commitment Notice, the Arrangers shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange for additional lenders with Commitments aggregating up to the Additional Commitment Amount. The Arrangers shall submit a list of additional proposed syndicate members to the Borrower for its review and approval, which approval shall not be unreasonably withheld or delayed; provided that,
that the foregoing shall not be deemed to prohibit the Borrower for submitting to the Arrangers a list of additional proposed syndicate members for their review. If any proposed lenders are approved by the Administrative Agent, the Issuing Bank, the Swingline Lender and the Borrower (such approval, in each case, not to be unreasonably withheld, delayed or conditioned) (it being acknowledged that any existing Lender (other than any Defaulting Lender) shall not require further approval hereunder), such lenders shall become additional Lenders under this Agreement (or, in the case of existing Lenders who are willing to increase their Commitments hereunder, continue as Lenders under this Agreement) in accordance with their respective Commitments at the time such Commitments become effective under this Agreement without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) to the extent any Note is requested by any new or existing Lender, the Borrower issuing such Note to such Lender, (iii) such new and existing Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each such Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Notice shall be delivered prior Amount, (iv) the Borrower paying to the expiry of existing Lenders the Availability Period;
(ii) the increase in and/oramounts payable, as the case may beif any, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise such existing Lenders pursuant to Section 2.16 as a result of the provision prepayment of any such Loans, (v) the Loan Parties, the new and existing Lenders and the Administrative Agent executing such other documents evidencing the addition of new Lenders hereunder and the adjustment of the Requested Additional Commitment; and
Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Bank, (ivvi) the terms Borrower paying the Arrangers for the account of each new Lender and each existing Lender that is increasing its Commitment such upfront fees, if any, as shall be agreed to by the Borrower and such Lender (or the Arrangers on behalf of such Lender), (vii) the Borrower paying the Arrangers such fees, if any, as shall be agreed to by the Borrower and the Arrangers prior to the Arrangers commencing their efforts under this paragraph (d) and (viii) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the terms of this Agreement in the same manner as the existing Commitmentsforegoing.
(Be) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available Notwithstanding anything to the Borrower (contrary contained in this Agreement or the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Dateother Loan Documents, each Lender shall inform hereby authorizes the Facility Administrative Agent (on behalf of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(DLenders) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility and the Committed Additional Participation provided Loans contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.Section
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Trust V, Inc.)
Additional Commitments. At any time prior to the Maturity Date, the Borrower shall have the right, exercisable no more than four (A4) KECI may times, to request that the Total Administrative Agent obtain additional Term Loan Commitments be increased by and/or Revolving Credit Commitments in excess of the provision Lenders’ then outstanding Term Loan Commitments and/or Revolving Credit Commitments in a minimum increment of additional commitments under at least Twenty-Five Million Dollars ($25,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the Facility (each such increase being a requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed Eight Hundred Million Dollars ($800,000,000).
(b) Any such request shall be made by providing the Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to the Administrative Agent prior to the Maturity Date, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender does not accept in writing within ten (10) Business Days the offer to increase its respective Commitment, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not accept in writing its pro rata share of the Additional Commitment Amount within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
no Default being in existence at such time, (ii) the increase Borrower issuing substitute Notes to the Accepting Lenders in and/oraccordance with Section 2.09(f) if so requested by them, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans and LC Exposure matches the maximum ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Commitment Amount, (iv) the terms Borrower certifying that the representations and warranties of the Requested Borrower Parties set forth herein (as updated from time to time in accordance with this Agreement) and in the other Loan Documents are true and correct in all material respects on and as of the date of the increase (except if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (v) the Borrower Parties, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender, (vi) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower, (vii) the Borrower paying the Arranger such fees, if any, as shall be agreed to by the Borrower and the Arranger prior to the Administrative Agent commencing its efforts under this paragraph (b), (viii) the Borrower paying all of the Administrative Agent’s reasonable and documented, out-of-pocket, expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment shallAmount, for all purposes of this Agreement, be treated pursuant the Borrower may designate one or more proposed lenders to the terms Administrative Agent and the Issuing Lender to become Lenders under this Agreement with respect to such balance of the Additional Commitment Amount (but in no event with proposed commitments of less than $5,000,000 unless the Administrative Agent consents thereto which consent shall not be unreasonably withheld, conditioned or delayed), subject in each case to the prior approval of the Administrative Agent and the Issuing Lender, which approvals shall not be unreasonably withheld, conditioned or delayed so long as such proposed lenders are not Ineligible Institutions. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
consent of any other Lenders, subject, however, to (i) confirm that no Default being in existence at the requirements time of clause 3.2(A) above are fulfilled; and
increase, (ii) specify the date upon which Borrower issuing substitute Notes to the Requested Additional Commitment is anticipated new Lenders in accordance with Section 2.09(f), (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be made available necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of all Commitments after giving effect to the Committed Additional Participation is less than Commitment Amount, (iv) the Requested Additional CommitmentBorrower Parties, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments, Loans and, for purposes of this Section 9.14, participations in LC Exposure, as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, and (v) the Borrower may agree paying all of the Administrative Agent’s reasonable, and documented, out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate payments received from such new Lenders in accordance with the Facility provided that:immediately preceding sentence.
(id) any such Additional Lender agrees Notwithstanding anything to become a Lender under the contrary contained in this Agreement and make available a Commitment or the other Loan Documents, each Lender hereby authorizes the Administrative Agent (on behalf of the terms and conditions Lenders) to enter into Modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance other Loan Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that necessary to reflect the necessary information is not already available to itadjustment of the Commitments, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLoans and, for purposes of this Section 9.14, participations in each case by lawLC Exposure, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession addition of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party new Lenders and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed other matters contemplated by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Section 9.14.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Additional Commitments. (A) KECI may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and Period;
(iii) the maximum Total Commitments would not exceed USD 125,000,000 immediately following such increase;
(iv) the aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitmentsby which the Total Commitments have at any given time been increased pursuant to this Clause 3.2(A) shall not exceed US$USD 50,000,000; and;
(iiiv) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(ivvi) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 7 (The Original LenderForm of Lender Accession Notice) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
(K) To the extent that the Total Commitments would exceed USD 75,000,000 immediately following such increase, on the Additional Commitment Date the Borrower shall pay to the Facility Agent, for the account of the Lenders to share rateably in accordance with their Committed Additional Participation, a fee to be agreed between the Borrower and the Facility Agent at such time.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Kosmos Energy Ltd.)
Additional Commitments. (Aa) KECI may request that Schedule 1 hereto sets forth the Total Additional Commitment of each Additional Lender as of the Assumption Effective Date (as defined below). The Additional Commitment of each Additional Lender shall be several and not joint.
(b) The Additional Commitments be increased by and the provision Revolving Loans and other extensions of additional commitments under credit made thereunder shall have the Facility same terms as those applicable to the Commitments and the Revolving Loans and other extensions of credit made thereunder, respectively. With effect from the Assumption Effective Date, the Additional Lenders shall constitute “Qualified Additional Lenders”, “Revolving Loan Lenders” and “Lenders”, the Additional Commitments shall constitute “Commitments” and the loans made thereunder shall constitute “Revolving Loans” (each such increase being a “Requested Additional Commitment”and not Other Credit Extensions), by providing written notice to in each case for all purposes of the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,Credit Agreement and the other Loan Documents.
(i) Upon the effectiveness of the Additional Commitment Notice shall be delivered Commitments, each Revolving Loan Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Lender, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Loan Lender’s participations under the expiry Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the Availability Period;
aggregate outstanding (x) participations under the Credit Agreement in Letters of Credit and (y) participations under the Credit Agreement in Swing Line Loans held by each Revolving Loan Lender (including each such Additional Lender) will equal such Lender’s Pro Rata Share and (ii) if, on the increase Assumption Effective Date, there are any Revolving Loans outstanding, such Revolving Loans shall, upon the effectiveness of the Additional Commitments, be prepaid from the proceeds of new Revolving Loans made under the Credit Agreement, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Loan Lender in and/oraccordance with Section 2.4 of the Credit Agreement.
(d) Holdings and the Co-Borrowers hereby appoint Deutsche Bank AG New York Branch (“Deutsche Bank”) as an Issuing Bank with respect to any Letter of Credit that may be issued by such Person after the Assumption Effective Date, as and Deutsche Bank hereby accepts such appointment. Notwithstanding the foregoing or anything to the contrary contained herein or in the Credit Agreement, neither Credit Suisse AG nor Deutsche Bank shall be obligated to issue or modify any Letter of Credit if, immediately after giving effect thereto, the outstanding Letter of Credit Usage of all Letters of Credit issued by such Person and its Affiliates would exceed (i) $45,000,000, in the case of Credit Suisse AG or (ii) $40,000,000, in the case of Deutsche Bank (the “Issuing Bank Sublimits”). Without limiting the foregoing and without affecting the limitations in the Credit Agreement on aggregate Letter of Credit Usage, it is understood and agreed that a Co-Borrower may befrom time to time request that an Issuing Bank exceed its individual Issuing Bank Sublimit, assumption and each Issuing Bank agrees to consider any such request in good faith. Any Letter of Requested Additional Commitments is to take effect before the expiry Credit so issued by an Issuing Bank in excess of the Availability Period and the maximum aggregate amount its individual Issuing Bank Sublimit shall nonetheless constitute a Letter of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, Credit for all purposes of this the Credit Agreement, be treated pursuant and shall not affect the Issuing Bank Sublimit of the other Issuing Bank (subject to the terms of this Agreement limitations in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements Credit Agreement on aggregate Letter of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”Credit Usage).
(Ce) Upon receipt of any notice pursuant The Co-Borrowers hereby agree to clause 3.2(Apay to each Additional Lender, through the Administrative Agent, in immediately available funds, an upfront fee (the “Upfront Fee”) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details equal to 1.0% of each Committed Additional Participation.
(D) IfLender’s Additional Commitment, as set forth in Schedule 1 hereto, on the Additional Commitment Assumption Effective Date. Once paid, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with Upfront Fee shall not be refundable under any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agentcircumstances.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Additional Facilities Assumption Agreement and Amendment No. 1 (Taylor Morrison Home Corp)
Additional Commitments. At any time prior to the Maturity Date, the Borrower shall have the right, exercisable no more than four (A4) KECI may times, to request that the Total Administrative Agent obtain additional Term Loan Commitments be increased by and/or Revolving Credit Commitments in excess of the provision Lenders’ then outstanding Term Loan Commitments and/or Revolving Credit Commitments in a minimum increment of additional commitments under at least Twenty-Five Million Dollars ($25,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the Facility (each such increase being a requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
(a) The aggregate amount of the Lenders’ Commitments shall not exceed One Billion Three Hundred Million Dollars ($1,300,000,000).
(b) Any such request shall be made by providing the Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to the Administrative Agent prior to the Maturity Date, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender does not accept in writing within ten (10) Business Days the offer to increase its respective Commitment, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not accept in writing its pro rata share of the Additional Commitment Amount within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
no Default being in existence at such time, (ii) the increase Borrower issuing substitute Notes to the Accepting Lenders in and/oraccordance with Section 2.09(f) if so requested by them, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period and other Lenders) the maximum aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans matches the ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Commitment Amount, (iv) the terms Borrower certifying that the representations and warranties of the Requested Borrower Parties set forth herein (as updated from time to time in accordance with this Agreement) and in the other Loan Documents are true and correct in all material respects on and as of the date of the increase (except if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (v) the Borrower Parties, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent, (vi) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower, (vii) the Borrower paying the Arranger such fees, if any, as shall be agreed to by the Borrower and the Arranger prior to the Administrative Agent commencing its efforts under this paragraph (b), (viii) the Borrower paying all of the Administrative Agent’s reasonable and documented, out-of-pocket, expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment shallAmount, for all purposes of this Agreement, be treated pursuant the Borrower may designate one or more proposed lenders to the terms Administrative Agent to become Lenders under this Agreement with respect to such balance of the Additional Commitment Amount (but in no event with proposed commitments of less than $5,000,000 unless the Administrative Agent consents thereto which consent shall not be unreasonably withheld, conditioned or delayed), subject in each case to the prior approval of the Administrative Agent, which approvals shall not be unreasonably withheld, conditioned or delayed so long as such proposed lenders are not Ineligible Institutions. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
consent of any other Lenders, subject, however, to (i) confirm that no Default being in existence at the requirements time of clause 3.2(A) above are fulfilled; and
increase, (ii) specify the date upon which Borrower issuing substitute Notes to the Requested Additional Commitment is anticipated new Lenders in accordance with Section 2.09(f), (iii) such new Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be made available necessary so that each new Lender’s pro rata share of outstanding Loans matches the ratio of its Commitment to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of all Commitments after giving effect to the Committed Additional Participation is less than Commitment Amount, (iv) the Requested Additional CommitmentBorrower Parties, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans, as shall be reasonably acceptable to the Borrower may agree and the Administrative Agent, and (v) the Borrower paying all of the Administrative Agent’s reasonable, and documented, out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate payments received from such new Lenders in accordance with the Facility provided that:immediately preceding sentence.
(id) any such Additional Lender agrees Notwithstanding anything to become a Lender under the contrary contained in this Agreement and make available a Commitment or the other Loan Documents, each Lender hereby authorizes the Administrative Agent (on behalf of the terms and conditions Lenders) to enter into Modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under Loans, the Facility addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section 9.14.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Additional Commitments. At any time following the date hereof, the Borrower may by written notice to the Administrative Agent elect to request an increase to the existing Class B Revolving Facility Commitments (Aany such increase, the “Additional Revolving Facility Commitments”) KECI may request that and/or the Total Class B Term Loan Commitments be increased by (any such increase, the provision of additional commitments under “Additional Term Loan Commitments” and together with the Additional Revolving Facility (each such increase being a Commitments, if any, the “Requested Additional CommitmentCommitments”), by providing written notice to an amount not in excess of, when aggregated with the Facility Agent amount of Permitted Notes issued in reliance on Section 6.01(w)(i), the sum of (x) $400.0 million plus (y) $300.4 million which was exercised on the date hereof, in the aggregate or a lesser amount in integral multiples of $10.0 million. For the avoidance of doubt, $400.0 million of such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice amount shall be delivered prior to the expiry available as of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is date hereof after giving effect to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
. Such notice shall (B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(iiA) specify the date upon (an “Increased Amount Date”) on which the Requested Borrower proposes that the Additional Commitment is anticipated to Commitments and, in the case of Additional Term Loan Commitments, the date for borrowing, as applicable, be made available available, which shall be a date not less than five (5) Business Days (or, in the case of the exercise on the date hereof, one (1) Business Day) after the date on which such notice is delivered to the Administrative Agent and (B) offer each Revolving Facility Lender (in the case of Additional Revolving Facility Commitments) and/or Term Loan Lender (in the case of Additional Term Loan Commitments) the right to increase its Class B Revolving Facility Commitment and/or Class B Term Loan Commitment, as applicable, on a pro rata basis. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender, Term Loan Lender or other financial institution reasonably acceptable to the Administrative Agent (the each, an “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) aboveRevolving Facility Lender,” an “Additional Term Loan Lender” or generally, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to whom the Additional Commitment Date; and
Commitments have been (ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms prior sentence) allocated and the amounts of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect such allocations; provided that any Lender approached to existing Commitments; and
(iii) any necessary rebalancing provide all or a portion of the Additional Commitments may elect or decline, in its sole discretion, to provide an Additional Commitment. Such Additional Commitments shall become effective as of such Increased Amount Date, and outstandings under in the Facility and the Committed case of Additional Participation provided by the Term Loan Commitments, such Additional Lender to ensure that they are pro rata Term Loans in respect hereof (the “New Commitment RebalancingAdditional Term Loans”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
on such Increased Amount Date; provided that (F1) Each no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Additional Lender Commitments and Loans; (2) such increase in the Class B Revolving Facility Commitments and/or the Class B Term Loan Commitments shall become a party be evidenced by one or more joinder agreements executed and delivered to the Finance Documents (Administrative Agent by each Additional Lender, as applicable, and each shall be entitled to share recorded in the Security created under register, each of which shall be subject to the Security Documents requirements set forth in accordance Section 2.17(e); and (3) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the terms provisions of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance DocumentsCommitments.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. Borrower shall have the right from time to time to cause the Administrative Agent to increase the total Commitments by up to $1,150,000,000, subject to the following:
(Aa) KECI may Any request that for increase in the Total total Commitments shall be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) to the Administrative Agent 30 days prior to the date upon which the Borrower shall desire such increase to become effective (provided that,that such period of notice may be reduced or waived at the Administrative Agent’s sole discretion), and shall set forth (1) the requested amount of the additional commitment (the “Additional Commitment Amount”), which Additional Commitment Amount shall be in the minimum amount of $50,000,000 and an integral multiple of $5,000,000 in excess thereof and (2) such details with respect thereto as are reasonably requested by the Administrative Agent.
(b) The aggregate amount of the Lenders’ Commitments after giving effect to the Additional Commitment Amount shall not exceed $1,250,000,000.
(c) Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this paragraph (c) within ten Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans, LC Exposure and participations in outstanding Swingline Loans matches the maximum ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Loan Parties, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Loan Parties, the Accepting Lenders, the Administrative Agent, the Swingline Lenders and the Issuing Banks, (including v) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower and the Administrative Agent prior to the Administrative Agent commencing its efforts under this paragraph (c), (vi) the Borrower paying the Arranger such fees as shall be agreed to by the Borrower and the Arranger prior to the Administrative Agent commencing its efforts under this paragraph (c) and (vii) the Borrower paying all previous increases of the Administrative Agent’s reasonable and documented out-of-pocket expenses in and/or assumptions connection with the foregoing.
(d) In the event that the Additional Commitment Amount is not achieved pursuant to paragraph (c) above, the Arranger shall use commercially reasonable efforts, with the assistance of Requested the Borrower, to arrange for additional lenders with Commitments aggregating up to the Additional Commitments) Commitment Amount. The Arranger shall submit a list of additional proposed syndicate members to the Borrower for its review and approval, which approval shall not exceed US$50,000,000; and
be unreasonably withheld or delayed. If any such proposed lenders are so approved by the Administrative Agent, the Swingline Lenders, the Issuing Banks and the Borrower, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) no Event such new Lenders paying to the Administrative Agent (on behalf of Default is continuing or would arise the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans, LC Exposure and participation in outstanding Swingline Loans matches the ratio of its Commitment to the aggregate amount of all Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower paying to the Lenders the amounts payable, if any, to such Lenders pursuant to Section 2.16 as a result of the provision prepayment of any such Loans, (v) the Loan Parties, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Requested Additional Commitment; and
Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent, the Swingline Lenders and the Issuing Banks, (ivvi) the terms Borrower paying the Administrative Agent for the account of each new lender such upfront fees as shall be agreed to by the Borrower and the Arranger prior to the Arranger commencing its efforts under this paragraph (d), (vii) the Borrower paying the Arranger such fees as shall be agreed to by the Borrower and the Arranger prior to the Arranger commencing its efforts under this paragraph (d) and (viii) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to Administrative Agent’s reasonable and documented out-of-pocket expenses in connection with the terms of this Agreement in the same manner as the existing Commitmentsforegoing.
(Be) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available Notwithstanding anything to the Borrower (contrary contained in this Agreement or the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Dateother Loan Documents, each Lender shall inform hereby authorizes the Facility Administrative Agent (on behalf of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(DLenders) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility and the Committed Additional Participation provided Loans contemplated by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro ratathis Section.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Global Trust II, Inc.)
Additional Commitments. At any time prior to the Maturity Date, the Borrower shall have the right, exercisable no more than four (A4) KECI may times, to request that the Total Administrative Agent obtain additional Term Loan Commitments be increased by and/or Revolving Credit Commitments in excess of the provision Lenders’ then outstanding Term Loan Commitments and/or Revolving Credit Commitments in a minimum increment of additional commitments under at least Twenty-Five Million Dollars ($25,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the Facility (each such increase being a requested amount being, the “Requested Additional CommitmentCommitment Amount”), subject to the following:
a. The aggregate amount of the Lenders’ Commitments shall not exceed Five Hundred Million Dollars ($500,000,000).
b. Any such request shall be made by providing the Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to the Administrative Agent prior to the Maturity Date, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender does not accept in writing within ten (10) Business Days the offer to increase its respective Commitment, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not accept in writing its pro rata share of the Additional Commitment Amount within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) no Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the Accepting Lenders in accordance with Section 2.09(f) if so requested by them, (iii) the Accepting Lenders paying to the Administrative Agent (on behalf of the other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Accepting Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its increased Commitment to the aggregate amount of all revised Commitments after giving effect to the Additional Commitment Amount, (iv) the Borrower certifying that the representations and warranties of the Borrower Parties set forth herein (as updated from time to time in accordance with this Agreement) and in the other Loan Documents are true and correct in all material respects on and as of the date of the increase (except if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (v) the Borrower Parties, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender, (vi) the Borrower paying the Administrative Agent for the account of each Accepting Lender such upfront fees as shall be agreed to by the Borrower, (vii) the Borrower paying the Arranger such fees, if any, as shall be agreed to by the Borrower and the Arranger prior to the Administrative Agent commencing its efforts under this paragraph (b), (viii) the Borrower paying all of the Administrative Agent’s reasonable and documented, out-of-pocket, expenses in connection with the foregoing and (ix) if Borrower submits the Additional Commitment Notice shall be delivered to Administrative Agent after the date that is six (6) months prior to the expiry Maturity Date, then the Additional Commitment Amount may only be effected to the extent the Maturity Date can simultaneously be extended in accordance with, and pursuant to the provisions of, Section 2.08(e) hereof. The Administrative Agent shall promptly pay to the applicable Lenders their share of any payments received from the Accepting Lenders in accordance with the immediately preceding sentence.
c. Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Availability Period;
Additional Commitment Amount, the Borrower may designate one or more proposed lenders to the Administrative Agent and the Issuing Lender to become Lenders under this Agreement with respect to such balance of the Additional Commitment Amount (but in no event with proposed commitments of less than $5,000,000 unless the Administrative Agent consents thereto which consent shall not be unreasonably withheld, conditioned or delayed), subject in each case to the prior approval of the Administrative Agent and the Issuing Lender, which approvals shall not be unreasonably withheld, conditioned or delayed so long as such proposed lenders are not Ineligible Institutions. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the consent of any other Lenders, subject, however, to (i) no Default being in existence at the time of increase, (ii) the increase Borrower issuing substitute Notes to the new Lenders in and/oraccordance with Section 2.09(f), as (iii) such new Lenders paying to the case may be, assumption of Requested Additional Commitments is to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the maximum ratio of its Commitment to the aggregate amount of Requested all Commitments after giving effect to the Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Commitment Amount, (iv) the terms Borrower Parties, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Requested Additional Commitment shallCommitments, Loans and, for all purposes of this AgreementSection 9.14, participations in LC Exposure, as shall be treated pursuant reasonably acceptable to the terms of this Agreement in Borrower, the same manner as Administrative Agent and the existing Commitments.
Issuing Lender, and (Bv) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (paying all of the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) aboveAdministrative Agent’s reasonable, and documented, out-of-pocket expenses in connection with the Facility foregoing. The Administrative Agent shall promptly notify pay to the applicable Lenders their share of any payments received from such request, and on new Lenders in accordance with the immediately preceding sentence.
d. Notwithstanding anything to the contrary contained in this Agreement or before the Additional Commitment Dateother Loan Documents, each Lender shall inform hereby authorizes the Facility Administrative Agent (on behalf of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(DLenders) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions enter into Modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance other Loan Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that necessary to reflect the necessary information is not already available to itadjustment of the Commitments, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLoans and, for purposes of this Section 9.14, participations in each case by lawLC Exposure, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession addition of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party new Lenders and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed other matters contemplated by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”Section 9.14.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Additional Commitments. (A) KECI The Borrower may request that the Total Commitments be increased at any time, upon prior written notice by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice Borrower to the Facility Administrative Agent, increase the Commitments by up to $75,000,000 with additional Commitments from any existing Lender or new Commitments from any other Person selected by the Borrower and approved by the Administrative Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) which approval shall not exceed US$50,000,000be unreasonably withheld or delayed); and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become increase shall be in a Lender under this Agreement minimum principal amount of $5,000,000 and make available a Commitment on the terms and conditions in integral multiples of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice $5,000,000 in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended)excess thereof;
(ii) no Default shall be continuing at the Committed Additional Participation time of any such increase;
(iii) no existing Lender shall rank pari passu with respect be under any obligation to existing Commitmentsincrease its Commitment and any such decision whether to increase its Commitment shall be in such Lender’s sole and absolute discretion; and
(iv) any new Lender shall join this Agreement by executing such joinder documents reasonably required by the Administrative Agent (but no consent from any existing Lender (other than any consent described in (iii) above from any Lender that is increasing its Commitment) shall be necessary rebalancing in connection with the exercise of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s electionrights hereunder). In connection with any such increase in the Commitments, (x) Schedule I (Commitments) shall be revised by the Facility Administrative Agent making utilisations from to reflect the Committed Additional Participation in priority to utilisations from new Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations and shall be made pro rata.
(F) Each Additional Lender shall become a party distributed to the Finance Documents Lenders and (y) the Administrative Agent shall notify the Lenders and be entitled to share the Borrower, on or before 1:00 p.m., (New York time), on the day following the date of the effectiveness of such increase, and shall record in the Security created under Register all applicable additional information in respect thereof. On the Security Documents date of any such increase in accordance the Commitments, each Lender or Eligible Assignee participating therein shall be deemed to purchase (at par, with Credit Agreement Orbital Sciences Corporation payment to be made by each participating Lender or Eligible Assignee to the terms Administrative Agent for the account of the Finance Documentsexisting Lenders) if and assume from each existing Lender having Revolving Loans and participations in Letters of Credit and Swing Loans outstanding on such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises Commitment increase date, without recourse or warranty, an undivided interest and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) hasparticipation, to the extent that of such Lender’s applicable percentage of the necessary information is not already available new Commitments (after giving effect to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredsuch increase), in each case by lawthe aggregate outstanding Revolving Loans and participations in Letters of Credit and Swing Loans, regulation or the LC Issuing Bank’s mandatory internal policy (so as consistently applied) regarding environmental issuesto ensure that, on such Commitment increase date after giving effect to such increase, each Lender is owed only its applicable percentage of the Revolving Loans and participations in relation to the accession Letters of Credit and Swing Loans outstanding on such Additional LenderCommitment increase date.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. The Parent Borrower may request, in minimum amounts of $10,000,000, at any time and from time to time that the existing Lenders increase their respective Commitments (Aand ratably increase their Multicurrency Revolving Subcommitment) KECI may request and/or that additional Lenders be added to this Agreement as Lenders with Commitments (and pro rata Multicurrency Revolving Subcommitments) until such time as the Total Commitments be increased by are equal to $700,000,000 (and that the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”Multicurrency Sublimit is so ratably increased); provided, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
that (i) at the Additional Commitment Notice shall be delivered prior to the expiry time of the Availability Period;
relevant request, no Default or Event of Default shall have occurred and be continuing and that the representations and warranties of the Parent Borrower shall continue to be accurate in all material respects, and (ii) any such additional Lender shall be approved by the Administrative Agent and Issuing Lender (such approval not to be unreasonably withheld or delayed). Each existing Lender shall have the right (but not the obligation) to increase its Commitment based on its Revolving Percentage on the same terms and conditions being offered to any additional Lenders. By its signature of a confirmation of its increased or additional Commitment in and/or, as a form satisfactory to the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period Parent Borrower and the maximum aggregate amount Administrative Agent (and subsequent to its delivery of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) a completed or revised administrative questionnaire to the Administrative Agent), each increasing or additional Lender shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as be a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, “Lender” for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such requesthereunder with its increased or additional Commitment, and on Schedule 1.1A shall be automatically amended to reflect any such additional Lender’s new Commitment and any such increasing Lender’s new Commitment. Upon increasing its Commitment or before the Additional Commitment Datebecoming a “Lender” hereunder, each Lender shall inform the Facility Agent automatically be responsible for its Revolving Percentage of the amount in Aggregate Exposure and to pay to the Base Currency Administrative Agent its Revolving Percentage of the Requested Additional Commitment which it will make available on a committed basis Loans (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender interest rates and currencies applicable thereto as under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receiptAgreement).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Genzyme Corp)
Additional Commitments. (A) KECI KEL may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to notify the Facility Agent (such notice being an “Additional Commitment Notice”) that it has agreed with any Lender or any other bank or financial institution (in each case, an “Additional Lender”) to increase the Total Commitments by the provision of additional commitments under the Facility (each such increase or, as the case may be, assumption in commitments being an “Additional Commitment”), provided that,:
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and;
(iviii) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments; and
(iv) the Total Commitments will not exceed USD 300 million as a result of such Additional Commitment unless the Majority Lenders have provided their consent to an increase above USD 300 million.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(Aparagraph (A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower Borrowers (the “Additional Commitment Date”).; and
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, In the Facility Agent shall promptly notify the Lenders of such request, and on or before the event that an Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees Party to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the sameAgreement, on or prior to the Additional Commitment Date; and
(ii) KECI KEL shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation Commitment to the Facility Agent.
(ED) Subject to the conditions in paragraphs paragraph (B) and (DC) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation Commitment for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation Commitment shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation Commitment provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, made by the Facility Agent a Borrower either:
(a) making utilisations from the Committed Additional Participation Commitment within five Business Days of the relevant Additional Commitment Date in priority to utilisations from Commitments under the Facility or to effect a prepayment under the Facility to the existing Lenders (which amount may be redrawn by the Borrowers); or
(b) making its first utilisation under the Additional Commitment on the last day of the then Interest Period, at that Borrower's election, in each case to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FE) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security Interests created under the Security Documents and benefit from the Deed of Guarantee, in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(GF) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(HG) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) necessary “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each under all applicable laws and regulations in relation to the accession of such Additional Lender.
(IH) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original a Lender on the date of this Agreement with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional ParticipationCommitment; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(JI) Clause 21.5 22.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) and a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Kosmos Energy Ltd.)
Additional Commitments. (A) KECI may request that On or after the Total Commitments Closing Date, if no Default shall have occurred and be increased by the provision of additional commitments under the Facility (each continuing at such increase being a “Requested Additional Commitment”)time, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) abovemay, the Facility Agent shall promptly notify the Lenders of such requestif it so elects, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, increase the aggregate amount of the Committed Additional Participation is less than Tranche A Commitments and the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender Tranche B Commitments (each an “Additional Lender”) that they will participate tranche expressed in the Facility provided that:
(i) any such Additional Lender agrees Australian Dollars), either by designating a Person not theretofore a Bank to become a Lender under this Agreement Bank or by agreeing with an existing Bank that such Bank’s Tranche A Commitment and/or Tranche B Commitment shall be increased (which increase by any such existing Bank shall be at such existing Bank’s sole discretion). Upon execution and make available a Commitment on the terms and conditions of this Agreement and delivery by the Borrower notifies the Facility Agent and such Bank or other Person of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice an instrument of assumption in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation reasonably satisfactory to the Facility Agent.
(E) Subject to , such existing Bank shall have a Tranche A Commitment and/or Tranche B Commitment as therein set forth, or such other Person shall become a Bank with a Tranche A Commitment and/or Tranche B Commitment as therein set forth and all the conditions in paragraphs (B) rights and (D) above being met, from the relevant Additional obligations of a Bank with such a Tranche A Commitment Date:
and/or Tranche B Commitment hereunder; provided that (i) the Additional Lender Borrower shall make available the relevant Committed Additional Participation for Utilisation under provide prompt notice of such increase to the Facility in accordance with Agent, which shall promptly notify the terms of this Agreement (as amended);
other Banks and (ii) the Committed Additional Participation shall rank pari passu amount of such increase, together with all other increases in the aggregate amount of the Tranche A Commitments and the Tranche B Commitments pursuant to this Section 2.1(c), does not exceed an aggregate amount of A$1,000,000,000. Upon any increase in the aggregate amount of the Tranche A Commitments pursuant to this Section 2.1(c), at the end of the then current Interest Period with respect to existing Commitments; each Group of Tranche A Loans then outstanding, the Borrower shall prepay such Group in its entirety, and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available Borrower elects to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation do so and subject to the accession conditions specified in Article III, the Borrower shall then reborrow Tranche A Loans from the Tranche A Banks in proportion to their respective Tranche A Commitments after giving effect to such increase, until such time as all outstanding Tranche A Loans are held by the Tranche A Banks in such proportion. Upon any increase in the aggregate amount of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party Tranche B Commitments pursuant to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation Section 2.1(c), at the end of responsibility the then current Interest Period with respect to each Group of Existing Lenders) Tranche B Loans then outstanding, the Borrower shall apply mutatis mutandis prepay such Group in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior its entirety, and, to the relevant extent the Borrower elects to do so and subject to the conditions specified in Article III, the Borrower shall then reborrow Tranche B Loans from the Tranche B Banks in proportion to their respective Tranche B Commitments after giving effect to such increase;
(ii) , until such time as all outstanding Tranche B Loans are held by the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”Tranche B Banks in such proportion.
Appears in 1 contract
Samples: Syndicated Facility Subscription Agreement (American Express Credit Corp)
Additional Commitments. (A) KECI At any time and from time to time on and after the Effective Date and prior to the Final Maturity Date, Parent and Corp. may request that one or more Lenders or other lending institutions to increase its Commitment (in the Total Commitments be increased by case of an existing Lender) or assume a Commitment (in the provision case of additional commitments under any other lending institution) and, in the Facility (sole discretion of each such increase being a “Requested Additional Commitment”)Lender or other institution, by providing written notice any such Lender or other institution may agree to the Facility Agent (such notice being an “Additional Commitment Notice”) so commit; provided that,
that (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default then exists, (ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is Total Commitment pursuant to take effect before the expiry of the Availability Period and the maximum any such request shall be in an aggregate amount of Requested Additional Commitments at least $16,000,000 and (including all previous increases iii) the aggregate increase in and/or assumptions of Requested Additional Commitments) the Total Commitment pursuant to this Section 1.16 shall not exceed US$50,000,000; and
$175,000,000. Parent, Corp. and each such Lender or other lending institution (iiieach, an "Assuming Lender") no Event of Default is continuing which agrees to increase its existing, or would arise as assume, a result of the provision of the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant shall execute and deliver to the terms of this Administrative Agent a Commitment Assumption Agreement substantially in the same manner as form of Exhibit H (with the existing Commitments.
(B) Each Additional increase in, or in the case of a new Assuming Lender, assumption of, such Lender's Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available effective on the Business Day following delivery of such Commitment Assumption Agreement to the Borrower (the “Additional Commitment Date”Administrative Agent).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility . The Administrative Agent shall promptly notify each Lender as to the Lenders occurrence of such request, and on or before the Additional each Commitment Assumption Date. On each Commitment Assumption Date, each Lender (x) Annex I shall inform be deemed modified to reflect the Facility Agent revised Commitments of the amount Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up front fee (if any) as may have been agreed between Parent, Corp. and such Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming Lenders in conformity with the requirements of Section 1.06. Notwithstanding anything to the contrary contained in this Agreement, in connection with any increase in the Base Currency of Total Commitment pursuant to this Section 1.16, each Borrower shall, in coordination with the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Administrative Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent Lenders, repay outstanding Revolving Loans of the samecertain Lenders and, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Dateif necessary, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, incur additional Revolving Loans from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks requiredLenders, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, so that such Lenders participate in each in relation to the accession Borrowing of such Additional Lender.
Revolving Loans Pro rata on the basis of their Commitments (I) On after giving effect to any increase thereof). It is hereby agreed that any breakage costs of the date that type described in Section 1.12 incurred by the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender Lenders in connection with the rights and/or obligations acquired or assumed repayment of Revolving Loans contemplated by it as a result this Section 1.16 shall be for the account of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”respective Borrowers.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Mbia Inc)
Additional Commitments. (A) KECI KEL may request that the Total Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested Additional Commitment”), by providing written notice to notify the Facility Agent (such notice being an “Additional Commitment Notice”) that it has agreed with any Lender or any other bank or financial institution (in each case, an “Additional Lender”) to increase the Total Commitments by the provision of additional commitments under the Facility (each such increase or, as the case may be, assumption in commitments being an “Additional Commitment”), provided that,:
(i) the Additional Commitment Notice shall be delivered prior to the expiry of the Availability Period;
(ii) the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and;
(iviii) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments; and
(iv) the Total Commitments will not exceed USD 300 million as a result of such Additional Commitment unless the Majority Lenders have provided their consent to an increase above USD 300 million.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(Aparagraph (A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower Borrowers (the “Additional Commitment Date”).; and
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, In the Facility Agent shall promptly notify the Lenders of such request, and on or before the event that an Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees Party to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the sameAgreement, on or prior to the Additional Commitment Date; and
(ii) KECI KEL shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation Commitment to the Facility Agent.
(ED) Subject to the conditions in paragraphs paragraph (B) and (DC) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation Commitment for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation Commitment shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation Commitment provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, made by the Facility Agent a Borrower either:
(a) making utilisations from the Committed Additional Participation Commitment within five Business Days of the relevant Additional Commitment Date in priority to utilisations from Commitments under the Facility or to effect a prepayment under the Facility to the existing Lenders (which amount may be redrawn by the Borrowers); or
(b) making its first utilisation under the Additional Commitment on the last day of the then Interest Period, at that Borrxxxx'x xlection, in each case to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(FE) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security Interests created under the Security Documents and benefit from the Deed of Guarantee, in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(GF) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and Lendxx xxx each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(HG) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) necessary “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each under all applicable laws and regulations in relation to the accession of such Additional Lender.
(IH) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original a Lender on the date of this Agreement with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional ParticipationCommitment; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(JI) Clause 21.5 22.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) and a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Kosmos Energy Ltd.)
Additional Commitments. At any time prior to the Maturity Date (Aas such date may be extended pursuant to Section 2.15), the Borrower may, by written notice (an “Increase Request”) KECI may to the Administrative Agent (which shall promptly deliver copies to the Lenders) request that the Total Commitments Commitment Amount be increased by the provision of additional commitments under the Facility amount specified in such notice (each any such increase being a herein called an “Requested Additional Incremental Commitment” and any loans made pursuant to an Incremental Commitment herein called “Incremental Loans”); provided, by providing written notice to the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
however, that (i) the Additional no Incremental Commitment Notice shall be delivered prior to the expiry of the Availability Period;
less than $5,000,000, (ii) the increase aggregate Incremental Commitments requested by the Borrower hereunder shall in and/orno event exceed $10,000,000, as (iii) after giving effect to all Incremental Commitments requested by the case may beBorrower hereunder, assumption of Requested Additional Commitments is to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) Total Commitment Amount shall not exceed US$50,000,000; and
the lesser of (iiix) $50,000,000 or (y) 50% of the Appraised Value of the Property, (iv) the proceeds of the Incremental Loans shall only be used in compliance with Section 2.6, (v) no Event of Default is shall have occurred and be continuing on the date on which any Incremental Commitment becomes effective or would arise result from such Incremental Commitment or from borrowing the Incremental Loans, (vi) the Incremental Loans shall bear the same interest rate and shall have the same Maturity Date (as a result such date may be extended pursuant to Section 2.15) and amortization schedule as the Initial Loans hereunder (i.e., there shall be no required prepayments prior to the Maturity Date, except upon acceleration pursuant to Article VII) and (vii) the Incremental Commitments and the Incremental Loans shall be subject to such other terms and conditions, the delivery of such documents (including documents required to reflect increases in the Mortgage and the Title Policy) and the payment of such fees and taxes (including origination fees in an amount equal to one-half of one percent of the provision of Incremental Commitment, legal fees and mortgage recording taxes on the Requested Additional Commitment; and
(iv) the terms of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement increase in the same manner as the existing Commitments.
(B) Each Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than Mortgage) as the Requested Additional CommitmentBorrower, the Incremental Lenders and the Administrative Agent may agree. Each Incremental Loan and the collateral therefor will be pari passu with the Intial Loan. Each Increase Request shall specify the identity of each existing Lender and Eligible Assignee to whom the Borrower may agree with proposes any bank or financial institution which portion of the requested Incremental Commitments be allocated and the amounts of such allocations (each such existing Lender (to the extent of its Incremental Commitment) and Eligible Assignee herein called an “Incremental Lender”); provided, however, that (A) the Borrower shall offer the Incremental Commitments to the existing Lenders before offering them to any Eligible Assignee that is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the samealready, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide all or any portion of such Incremental Commitment offered to it and (DC) above being met, from any Eligible Assignee to whom the relevant Additional Commitment Date:
(i) Borrower proposes any portion of the Additional requested Incremental Commitments be allocated that is not already a Lender shall make available be satisfactory to the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement Administrative Agent (as amended);
(iiwhose approval shall not be unreasonably withheld or delayed) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to this Agreement by completing and delivering to the Finance Documents Administrative Agent a duly executed accession agreement in a form reasonably satisfactory to the Administrative Agent and the Borrower (an “Accession Agreement”). Upon the effectiveness of any Accession Agreement to which any Eligible Assignee is a party, (i) such Eligible Assignee shall thereafter be deemed to be a party to this Agreement and shall be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises all rights, benefits and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional privileges accorded a Lender and each Party agrees subject to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days all obligations of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (hereunder and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or Schedule 1.1 shall be deemed to have been amended to reflect the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession Commitment of such Additional Lender.
(I) On Eligible Assignee as provided in such Accession Agreement. The Borrower shall borrow the full amount of each Incremental Commitment on the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Noticesuch Incremental Commitment becomes effective. All Incremental Commitments shall constitute Commitments, each other Finance Party all Incremental Loans shall constitute Loans, and the Obligors all Incremental Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result constitute Lenders, for purposes of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”and all other Loan Documents.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. At any time on or before December 15, 2008, the Borrower shall have the right, exercisable no more than two (A2) KECI may times, to request that the Total Administrative Agent permit additional Commitments to be increased by the provision of additional commitments added under the Facility terms of this Agreement in excess of the Lenders’ then outstanding Commitments in a minimum increment of at least Fifty Million Dollars (each such increase being a $50,000,000), or integral multiples of Five Million Dollars ($5,000,000) in excess thereof (the requested amount being, the “Requested Additional CommitmentCommitment Amount”), to be allocated to the Commitments, subject to the following:
(i) The aggregate amount of the Lenders’ Commitments shall not exceed One Billion Dollars ($1,000,000,000) less the amounts of any prior reductions or terminations of Commitments pursuant to Section 2.09(d), and (ii) the Additional Commitment Amount shall not exceed Three Hundred Million Dollars ($300,000,000) in the aggregate.
(b) Any such request shall be made by providing the Borrower giving written notice to (the Facility Agent (such notice being an “Additional Commitment Notice”) provided that,
to the Administrative Agent before September 15, 2008, which notice shall set forth such details with respect thereto as are reasonably requested by the Administrative Agent. Upon receipt of the Additional Commitment Notice, the Administrative Agent shall notify the then existing Lenders of the terms of such Additional Commitment Notice and each Lender’s pro rata share of the proposed Additional Commitment Amount. If any Lender rejects the offer to increase its respective Commitment or accepts only a portion thereof, which each Lender may do in its sole and absolute discretion, the Administrative Agent shall further offer the rejected shares (or rejected portions thereof) to the Lenders that have accepted the proposed increase in their Commitments (each an “Accepting Lender”), pro rata based on the sum of their then existing Commitments plus any additional portion of the Additional Commitment Amount which they have previously accepted. If any Lender shall not respond to a request by the Administrative Agent pursuant to this clause (b) within ten (10) Business Days after receipt of an offer (including any offer for a portion of the Additional Commitment Amount rejected by another Lender), such Lender shall be deemed to have rejected such offer. The Administrative Agent shall notify the Borrower of all acceptances and rejections with respect to the Additional Commitment Amount by the Lenders. If such acceptances are satisfactory to the Borrower, the Commitments of the Accepting Lenders shall be increased by their respective portions of the Additional Commitment Amount without the consent of any other Lender, subject, however, to (i) the Additional Commitment Notice shall be delivered prior to the expiry no Default or Event of the Availability Period;
Default being in existence at such time, (ii) the increase in and/orBorrower issuing substitute Notes, as (iii) the case may be, assumption of Requested Additional Commitments is Accepting Lenders paying to take effect before the expiry Administrative Agent (on behalf of the Availability Period other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each Initial Accepting Lender’s pro rata share of outstanding Loans and LC Exposure, if applicable, matches the maximum ratio of its increased Commitment to the aggregate amount of Requested all revised Commitments after giving effect to the Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; and
(iii) no Event of Default is continuing or would arise as a result of the provision of the Requested Additional Commitment; and
Commitment Amount, (iv) the terms Borrower, the Accepting Lenders and the Administrative Agent executing such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender and (v) the Borrower paying all of the Requested Additional Commitment shall, for all purposes of this Agreement, be treated pursuant Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the terms applicable Lenders their share of this Agreement any payments received from the Accepting Lenders in accordance with the same manner as the existing Commitmentsimmediately preceding sentence.
(Bc) Each Notwithstanding anything to the contrary contained herein, if the Lenders do not accept increases in their aggregate Commitments in the full amount of the Additional Commitment Notice shall:
Amount in accordance with paragraph (i) confirm that the requirements of clause 3.2(A) above are fulfilled; and
(ii) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”).
(C) Upon receipt of any notice pursuant to clause 3.2(Ab) above, the Facility Borrower may designate one or more proposed lenders to the Administrative Agent shall promptly notify and the Issuing Lender to become Lenders under this Agreement with respect to such balance of such request, and on or before the Additional Commitment DateAmount (but in no event with proposed commitments of less than $10,000,000 unless the Administrative Agent consents thereto), subject in each Lender shall inform case to the Facility Agent prior approval of the amount Administrative Agent and the Issuing Lender, which approvals shall not be unreasonably withheld or delayed if such proposed lenders meet the standards of an Eligible Assignee. If such proposed lenders are so approved, such lenders shall become additional Lenders under this Agreement in accordance with their respective Commitments without the Base Currency consent of any other Lenders, subject, however, to (i) no Default or Event of Default being in existence at such time, (ii) the Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders paying to the Administrative Agent (on behalf of the Requested Additional other Lenders) the aggregate amount determined by the Administrative Agent to be necessary so that each new Lender’s pro rata share of outstanding Loans and LC Exposure matches the ratio of its Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, to the aggregate amount of all Commitments after giving effect to the Committed Additional Participation is less than Commitment Amount, (iv) the Requested Additional CommitmentBorrower, the new Lenders and the Administrative Agent executing such other documents evidencing their addition as Lenders hereunder and the adjustment of the Commitments and Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and the Issuing Lender, including each such new Lender’s compliance with the provisions of clauses (ii), (iii) and (v) of Section 9.04(b), and (v) the Borrower may agree paying all of the Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing. The Administrative Agent shall promptly pay to the applicable Lenders their share of any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate payments received from such new Lenders in accordance with the Facility provided that:immediately preceding sentence.
(id) any such Additional Lender agrees Notwithstanding anything to become a Lender under the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes the Administrative Agent (on behalf of the Lenders) to enter into amendments and make available a Commitment on the terms and conditions modifications of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior other Loan Documents to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior extent necessary to reflect the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing adjustment of the Commitments and outstandings under the Facility Loans, the addition of new Lenders and the Committed Additional Participation provided other matters contemplated by the Additional Lender to ensure that they are pro rata this Section.” (the “New Commitment Rebalancing”cc) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation Schedule 2.01 is hereby deleted in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rataits entirety and replaced with Schedule 2.01 attached hereto.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (Nationwide Health Properties Inc)
Additional Commitments. (Aa) KECI The Borrower may request that notify the Total Agent if one or more of the Lenders or any other bank, financial institution, trust, fund or other entity has agreed to commit Additional Commitments be increased by the provision of additional commitments under the Facility (each such increase being a “Requested delivering an Additional Commitment”), by providing written notice Commitment Notice to the Facility Agent Agent.
(such notice being an “b) An Additional Commitment Notice”) provided that,Notice is irrevocable and will not be regarded as having been duly completed unless:
(i) the it lists each Proposed Additional Lender, together with its Proposed Additional Commitment Notice shall be delivered prior to the expiry of the Availability Periodfor Facility A and/or Facility B;
(ii) it specifies that no Default has occurred and is continuing as at the increase in and/or, as the case may be, assumption of Requested Additional Commitments is to take effect before the expiry date of the Availability Period and Additional Commitment Notice or would reasonably be expected to occur as a result of the maximum aggregate amount of Borrower borrowing the Requested Additional Commitments (including all previous increases in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000Amount; and
(iii) no Event it specifies that borrowing the Requested Amount would not cause any borrowing or similar limit binding on the Borrower to be exceeded.
(c) If each of Default the conditions set out in paragraph (d) below have been satisfied in form and substance satisfactory to the Agent, the Agent shall, as soon as reasonably practicable:
(i) execute each Additional Lender Accession Notice;
(ii) execute the Additional Commitment Notice;
(iii) notify the Borrower and each Additional Lender that it is continuing or would arise satisfied that each of the conditions set out in paragraph (d) below have been met, whereupon:
(A) each Additional Lender party to an Additional Lender Accession Notice shall become a Party as a result Facility A Lender and/or a Facility B Lender;
(B) the amount of the provision Additional Commitments will increase Facility A and Facility B respectively in accordance with the Proposed Additional Commitments for Facility A and the Proposed Additional Commitments for Facility B set out in the Additional Commitment Notice; and
(C) subject to the terms of this Agreement, the Additional Lenders shall make available to the Borrower a term loan facility in an aggregate amount equal to the Total Additional Commitments.
(d) The conditions referred to in paragraph (c) above are:
(i) delivery to the Agent of a duly completed and executed Additional Commitment Notice by the Borrower not later than the date falling three Months after the initial Utilisation Date less five Business Days;
(ii) delivery to the Agent of a duly executed Additional Lender Accession Notice by each Proposed Additional Lender and, in each case, the Borrower not later than the date falling three Months after the initial Utilisation Date less five Business Days;
(iii) that the Requested Amount is equal to the aggregate of the Requested Proposed Additional Commitment; andCommitments;
(iv) the terms Proposed Additional Commitment of each Proposed Additional Lender is equal to the Additional Commitment of that Additional Lender;
(v) the Agent satisfying itself that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the accession of each Proposed Additional Lender; and
(vi) the provision by the Borrower of such other details, Authorisations or other documents, opinions or assurances as the Agent may reasonably require (if the aggregate amount of the Total Commitments and the Requested Amount exceeds the amount approved in the corporate authorisations delivered as conditions precedent under Clause 4.1 (Initial conditions precedent) and it has notified the Borrower accordingly prior to the date falling five Business Days after receipt by the Agent of an Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing CommitmentsNotice).
(Be) Each On the Additional Commitment Notice shallCommitments Establishment Date, each Additional Lender expressly acknowledges and gives each confirmation contained in Clause 22.4 (Limitation of responsibility of Existing Lenders) as if:
(i) confirm that the requirements of clause 3.2(A) above are fulfilledAdditional Lender was a New Lender under that clause; and
(ii) specify the date upon which the Requested each Finance Party (other than that Additional Commitment is anticipated to be made available to the Borrower (the “Additional Commitment Date”)Lender) was an Existing Lender under that clause.
(Cf) Upon receipt Prior to the issuance of any notice pursuant to clause 3.2(A) abovean Additional Commitment Notice, the Facility Agent Borrower shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, invite each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested to provide any Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional ParticipationCommitments.
(Dg) If, Each Finance Party irrevocably authorises and instructs the Agent to execute on the its behalf any Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution Notice which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) has been duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility AgentBorrower.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(Fh) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share in the Security created under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Documents.
(G) Each party Party (other than the relevant Proposed Additional LenderLender party to that Additional Lender Accession Notice) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Lender Accession Notice which has been duly completed and signed on behalf of that proposed Proposed Additional Lender and the Borrower and each Finance Party agrees to be bound by each such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the The Borrower may deliver only one Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to Notice under this Agreement as a “Lender”Agreement.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Commitments. (Aa) KECI Subject to the terms and conditions hereof, at any time after the Effective Date and prior to the Maturity Date, provided that no Event of Default has occurred and is continuing and that the Borrower is in pro forma compliance with the financial covenants in Section 5.1(12) (assuming the full incurrence and application of the new Indebtedness in question), the Borrower may request that the Total Lenders or any other Persons provide additional Commitments be increased by the provision of additional commitments under the Facility (each such increase being a each, an “Requested Additional Commitment”)) which shall serve to increase the Credit, such that further Loans become available thereunder upon identical terms and conditions.
(b) Any Additional Commitment shall be documented pursuant to an Additional Commitment Agreement executed by the Borrower, the Person providing written notice to the Facility Agent Additional Commitment (such notice being an the “Additional Commitment NoticeLender”) provided that,
and the Administrative Agent. Upon satisfaction of the conditions precedent set out therein, (i) the Additional Commitment Notice in question shall become effective, (ii) the Administrative Agent shall promptly notify each Lender as to such agreement, and (iii) Schedule 2.1 shall be delivered prior deemed to be modified accordingly.
(c) Notwithstanding anything to the expiry contrary in this Agreement: 24708069.14
(i) no Additional Commitment shall require the consent of any Lender other than the Additional Lender in question, but each Additional Commitment shall require the approval of the Availability PeriodAdministrative Agent, not to be unreasonably withheld;
(ii) the increase no Lender shall have any obligation to participate in and/or, as the case may be, assumption of Requested any Additional Commitments is Commitment unless it agrees to take effect before the expiry of the Availability Period and the maximum aggregate amount of Requested Additional Commitments (including all previous increases do so in and/or assumptions of Requested Additional Commitments) shall not exceed US$50,000,000; andits sole discretion;
(iii) no Event of Default is continuing Lender shall have the right to participate in any Additional Commitment or would arise as a result receive prior notice thereof, regardless of the provision of fact that its share in the Requested Additional Commitment; andaggregate Commitments is reduced thereby;
(iv) the terms aggregate amount of the Requested all Additional Commitment shall, for all purposes of this Agreement, be treated pursuant to the terms of this Agreement in the same manner as the existing Commitments.Commitments shall not exceed U.S. $100,000,000;
(Bv) Each the aggregate amount of all Additional Commitment Notice shall:
(i) confirm that the requirements of clause 3.2(A) above are fulfilledCommitments requested at any one time shall not be less than U.S.$10,000,000; and
(iivi) specify the date upon which the Requested Additional Commitment is anticipated to be made available to the Borrower (may pay such up-front, arrangement or other fees as may be agreed by the “Administrative Agent and any Additional Commitment Date”)Lender in connection with the provision by such Additional Lender of an Additional Commitment.
(Cd) Upon receipt of For greater certainty, any notice pursuant to clause 3.2(A) above, the Facility Agent shall promptly notify the Lenders of such request, and on or before the Additional Commitment Date, each Lender shall inform the Facility Agent of the amount in the Base Currency of the Requested Additional Commitment which it will make available on a committed basis (each a “Committed Additional Participation”). The Facility Agent shall promptly notify KECI of the details of each Committed Additional Participation.
(D) If, on the Additional Commitment Date, the aggregate amount of the Committed Additional Participation is less than the Requested Additional Commitment, the Borrower may agree with any bank or financial institution which is not a Lender (each an “Additional Lender”) that they will participate in the Facility provided that:
(i) any such Additional Lender agrees to become a Lender under this Agreement and make available a Commitment on the terms and conditions of this Agreement and the Borrower notifies the Facility Agent of the same, on or prior to the Additional Commitment Date; and
(ii) KECI shall procure that on or prior to the Additional Commitment Date, such Additional Lender delivers a Lender Accession Notice in the form set out in Schedule 1 (The Original Lender) duly completed and signed on behalf of the Additional Lender and specifying its Committed Additional Participation to the Facility Agent.
(E) Subject to the conditions in paragraphs (B) and (D) above being met, from the relevant Additional Commitment Date:
(i) the Additional Lender shall make available the relevant Committed Additional Participation for Utilisation under the Facility in accordance with the terms of this Agreement (as amended);
(ii) the Committed Additional Participation shall rank pari passu with respect to existing Commitments; and
(iii) any necessary rebalancing of the Commitments and outstandings under the Facility and the Committed Additional Participation provided by the Additional Lender to ensure that they are pro rata (the “New Commitment Rebalancing”) will be made, at the Borrower’s election, by the Facility Agent making utilisations from the Committed Additional Participation in priority to utilisations from Commitments under the Facility to procure, as far as practicable, any New Commitment Rebalancing, following which all utilisations shall be made pro rata.
(F) Each Additional Lender shall become a party to the Finance Documents (and be entitled to share pro rata in any prepayments made by the Security created Borrower pursuant to Section 2.9, and the obligations of the Credit Parties under any such Additional Commitment shall be secured pari passu with the other obligations of the Credit Parties under the Security Documents in accordance with the terms of the Finance Documents) if such Additional Lender accedes to the Finance Documents in accordance with the Finance Loan Documents.
(G) Each party (other than the relevant Additional Lender) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Lender Accession Notice which has been duly completed and signed on behalf of that proposed Additional Lender and each Party agrees to be bound by such accession. The Facility Agent must promptly sign any such Lender Accession Notice (and in any event within three Business Days of receipt).
(H) The Facility Agent shall only be obliged to execute a Lender Accession Notice delivered to it by an Additional Lender once the Facility Agent (and LC Issuing Bank) (acting reasonably) has, to the extent that the necessary information is not already available to it, received all required information to comply with all (i) “know your customer” requirements or (ii) other similar checks required, in each case by law, regulation or the LC Issuing Bank’s mandatory internal policy (as consistently applied) regarding environmental issues, each in relation to the accession of such Additional Lender.
(I) On the date that the Facility Agent executes a Lender Accession Notice:
(i) the Additional Lender party to that Lender Accession Notice, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had that Additional Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of that accession and with the Commitment specified by it as its Committed Additional Participation; and
(ii) that Additional Lender shall become a Party to this Agreement as a “Lender”.
(J) Clause 21.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 3.2 in relation to an Additional Lender as if references in that clause to:
(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
(ii) the “New Lender” were references to that “Additional Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
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Samples: Credit Agreement (SSR Mining Inc.)