Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.
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Increase of Commitments. Subject (a) If no Default, Event of Default or Material Adverse Change shall have occurred and be continuing at the time of delivery of the Commitment Increase Notice, the Borrower may at any time and from time to time request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $10,000,000, (ii) the cumulative increase in Commitments after the date hereof pursuant to this Section 2.20 shall not exceed $150,000,000 without the approval of the Required Lenders, (iii) the Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Revolving Loan Commitments shall not exceed $700,000,000 without the approval of the Required Lenders. The Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall so notify the Administrative Agent in writing no later than fifteen (15) days after receipt by the Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall, in each case, execute a Commitment Increase Agreement, in substantially the form attached hereto as Exhibit C, with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Revolving Loan Commitment as so increased, and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the Administrative Agent within such period that it will increase its Revolving Loan Commitment shall be deemed to have rejected such offer to increase its Revolving Loan Commitment. No Lender shall have any obligation whatsoever to agree to increase its Revolving Loan Commitment. Any agreement to increase a Lender’s pro rata share of the increased Revolving Loan Commitment shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of such unsubscribed portion of the Commitments (provided that the aggregate amount of such increases in the increased Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Administrative Agent. Each Lender shall notify the Agent Promptly and in any event within ten five (105) Business Days after receipt of notice from the Agent's notice whether Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Revolving Loan Commitments shall execute and deliver to the Administrative Agent a New Lender wishes Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit D, setting forth its Revolving Loan Commitment, and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and the definition of Revolving Loan Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Revolving Loan Commitment of any New Lender shall be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders. Any Lender that accepts an offer to it by the Borrower to increase its Commitment. If Commitment pursuant to this Section 2.20 shall, in each case, execute a Lender fails to deliver any such notice to Commitment Increase Agreement with the Agent within such time periodBorrower and the Administrative Agent, then 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 the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to have declined be amended to increase its Commitment. No reflect such increase.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be required contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment and Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(e) If any new Lender(sbank or financial institution becomes a New Lender pursuant to Section 2.20(c) becoming a party or any Lender’s Commitment is increased pursuant to this Agreement Section 2.20, additional Revolving Loans made on or after the effectiveness thereof (the “Re-Allocation Date”) shall be made pro rata based on their respective Commitments in connection with effect on or after such Re-Allocation Date (except to the extent that any such requested increase must be pro rata borrowings would result in any Lender making an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase aggregate principal amount of Revolving Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Revolving Loan Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
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Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)a) At any time, the Borrower may request that the Aggregate Commitment be increased; provided that, (i) the Aggregate Commitment shall have the right to request an increase in at no time exceed $125,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section 2.09; (ii) the Borrower shall not exceed $55,000,000make any such request during the six month period following any reduction in the Aggregate Commitment previously made pursuant to Section 2.09; (iii) by providing written notice the Borrower shall not be entitled to the Agent, which notice make any such request more frequently than once in each 12-month period; and (iv) each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 5,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within date that is ten (10) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender ten (10) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Administrative Agent shall have the right, in consultation with the Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required consented to increase by the Administrative Agent (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amount shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Borrower shall have obtained the consent thereto of each Subsidiary Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Event of Default, (C) the Borrower, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit D hereto, (D) counsel for the Borrower and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrower and each Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Borrower. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment at any time.
(b) For purposes of this clause (b), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment, and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice, (B) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such requested increase must be an Eligible Assigneein the Aggregate Commitment and (C) the term “Percentage” shall mean with respect to any Lender, the percentage obtained by dividing (w) such Lender’s Commitment at such time (as adjusted from time to time in accordance herewith) by (x) the total Commitments at such time (as adjusted from time to time in accordance herewith); provided, if all of the Commitments are terminated pursuant hereto, then “Percentage” means the percentage obtained by dividing (y) such Lender’s Revolving Credit Exposures by (z) the total Revolving Credit Exposures of all the Lenders. In Effective on the event a new effective date of any increase in the Aggregate Commitment pursuant to clause (a) above, each Selling Lender or Lenders become a party hereby sells, grants, assigns and conveys to this Agreementeach Buying Lender, without recourse, warranty, or if representation of any existing Lender agrees kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to increase its CommitmentRevolving Credit Exposure in the respective Dollar Amounts and percentages necessary so that, from and after such Lender sale, each such Selling Lender’s Revolving Credit Exposure shall equal such Selling Lender’s Percentage (calculated based upon the Effective Commitment Amounts) of the aggregate Revolving Credit Exposures. Effective on the effective date it becomes a Lender hereunder (or increases its Commitment, of the increase in the case of an existing LenderAggregate Commitment pursuant to clause (a) (above, each Buying Lender hereby purchases and as a condition thereto) purchase accepts such grant, assignment and conveyance from the other Lenders Selling Lenders. Each Buying Lender hereby agrees that its Commitment respective purchase price for the portion of the Revolving Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s Revolving Credit Exposure shall equal such Buying Lender’s Percentage (as determined after giving effect calculated based upon the Effective Commitment Amounts) of the aggregate Revolving Credit Exposures. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the increase Administrative Agent. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Revolving Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of Commitments) of any outstanding Revolving its interest in such Loans, by making available except for participations which will be extinguished upon payment to the Agent for the account Selling Lender of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased Credit Exposure being sold by such Selling Lender. Each Buying Lender plus (b) hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the aggregate amount foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of payments previously made by its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansLoan Documents. The Borrower shall also pay hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment sale and assignment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurocurrency Loan hereunder on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase terms and in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements manner as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, set forth in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 2.16 hereof.
Appears in 1 contract
Sources: Credit Agreement (Heidrick & Struggles International Inc)
Increase of Commitments. Subject The Borrower has requested that the ----------------------- aggregate Term Loan Commitments and Revolving Loan Commitments be increased pro rata by an aggregate maximum principal amount of $10,000,000 ($7,500,000 with respect to the approval Revolving Loan Commitments and $2,500,000 with respect to the Term Loan Commitments) (the amount of such increase called the "Commitment Increase"). For a period of 120 days after the Closing Date, the Agent shall use its best commercially reasonable efforts to syndicate the Commitment Increase through the increase of the Agent Term Loan Commitments and Revolving Loan Commitments of Lenders (each such Lender which is willing to increase its Commitment being a "Step-up Lender") and/or by the addition of one or more new lenders agreed to by the Borrower whose approval shall not be unreasonably withheld or delayeddelayed (a "New Lender"). Any such Commitment Increase shall be effective as of the date the Agent completes such syndication, whereupon it shall promptly give written notice thereof to the Borrower, the Borrower Lenders, the Step-up Lenders and the New Lenders, as the case may be, and shall have be effective as of the right day after such notice is given (the "Commitment Increase Date"); provided, however, that: -------- ------- ----
(a) such notice of Commitment Increase shall specify as to request an increase in each Step- Up Lender and/or New Lender, the aggregate amount of the Commitments (provided that the aggregate amount Commitment of such increases in the Commitments pursuant Lender after giving effect to this Section shall not exceed $55,000,000such Commitment Increase;
(b) by providing written notice to the Agent, which notice it shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right Lender's sole discretion whether to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement hereunder in connection with the proposed Commitment Increase;
(c) the Borrower may not propose any such requested increase must be an Eligible Assignee. In more Commitment Increases other than the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, one reflected in the case first sentence of an existing Lenderthis Section 2.3; -----------
(d) the minimum proposed Commitment Increase shall be $10,000,000;
(e) in no event shall the aggregate Term Loan Commitments and as a condition thereto) purchase from the other Lenders its Commitment Percentage Revolving Loan Commitments (as determined after giving effect to the increase of Commitmentssuch Commitment Increase) of exceed $15,000,000 and $45,000,000, respectively;
(f) no Commitment Increase shall be permitted at any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of time the Commitments may be effected under this Section if either shall have been reduced or terminated; and
(xg) a no Default or Event of Default shall have occurred and be in existence continuing on such Commitment Increase Date. If by 10:00 A.M., Chicago time, on the effective date of such increase or (y) any representation or warranty made or deemed made by proposed Commitment Increase Date, the Borrower or any other Obligor in any Loan Document Agent shall have received to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount satisfaction of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of following (the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment."Commitment Increase Closing Items"):
Appears in 1 contract
Increase of Commitments. Subject (i) At any time prior to the approval Facility Termination Date, the Company may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Agent Lenders, (which a) the Aggregate Commitment shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in at no time exceed $300,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section shall not exceed $55,000,0002.6.3; and (b) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and the Arranger shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required consented to increase by the Administrative Agent (which consent shall not be unreasonably withheld). If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Company shall have obtained the consent thereto of each Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (C) the Borrowers, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit I hereto, (D) counsel for the Borrowers and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrowers and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Company. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Company and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement in connection with any such requested increase must be an Eligible Assigneeas a Lender and shall have the rights and obligations of a Lender hereunder and thereunder. In the event a new Lender or Lenders become a party to this AgreementNothing contained herein shall constitute, or if otherwise be deemed to be, a commitment on the part of any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender Commitment hereunder at any time.
(or increases its Commitment, in the case ii) For purposes of an existing Lender) this clause (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier dateii). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any the term “Buying Lender(s)” shall mean (1) each Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing Effective Commitment Amount of which is greater than its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.prior to
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Acuity Brands Inc)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)i) At any time, the Borrower may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (a) the Aggregate Commitment shall have the right to request an increase in at no time exceed $200,000,000 minus the aggregate amount of all reductions in the Commitments Aggregate Commitment previously made pursuant to Section 2.6(A), (provided that the aggregate b) each such request shall be in a minimum amount of such increases at least $10,000,000 and increments of $5,000,000 in excess thereof and (c) the Commitments Aggregate Commitment may not be increased more than twice pursuant to this Section 2.6. Such request shall not exceed $55,000,000) by providing be made in a written notice given to the AgentAgent and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall be irrevocable once given. Each such specify the amount of the proposed increase in the Commitments must be an aggregate minimum amount of $10,000,000 Aggregate Commitment and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender the proposed effective date of such requestincrease. Each existing Lender shall have In the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in the Commitments. All other allocations of such requested increase shall be subject proportions that their respective Commitments bear to the approval of Aggregate Commitment under this Agreement. On or prior to the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Agent and the Arranger shall have the right, with the consent of the Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required subject to increase the consent of the Agent and JPMorgan, in its capacity as Principal Issuing Lender (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices (subject to clause (d) above). Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (B) the Borrower, the Agent, JPMorgan, in its capacity as Principal Issuing Lender, and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a Commitment and Acceptance substantially in the form of Exhibit D hereto (a “Commitment and Acceptance”), (C) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (D) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Borrower. No less than two (2) Business Days prior to the effective date of the increase of the Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its request for the commitment increase. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and (b) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such requested increase must be an Eligible Assigneein the Aggregate Commitment. In Effective on the event a new effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender or Lenders become a party hereby sells, grants, assigns and conveys to this Agreementeach Buying Lender, without recourse, warranty, or if representation of any existing Lender agrees kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to increase its Commitmentoutstanding Loans in the respective dollar amounts and percentages necessary so that, from and after such Lender sale, each such Selling Lender’s outstanding Loans shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans. Effective on the effective date it becomes a of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereunder hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the outstanding Loans purchased hereby shall equal the respective dollar amount necessary so that, from and after such payments, each Buying Lender’s outstanding Loans shall equal such Buying Lender’s Pro Rata Share (or increases its Commitmentcalculated based upon the Effective Commitment Amounts) of the outstanding Loans. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the Agent. The Agent, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect turn, shall wire transfer any such funds received to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal OfficeSelling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Loans being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Loans, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased being sold by such Selling Lender. Each Buying Lender plus (b) hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the aggregate amount foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of payments previously made by its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansLoan Documents. The Borrower shall also pay hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment sale and assignment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurocurrency Loan hereunder on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase terms and in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements manner as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, set forth in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 3.4.
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Increase of Commitments. Subject (a) Upon notice to the approval of the Agent (which who shall not be unreasonably withheld or delayedpromptly notify the Lenders), the Borrower shall have may, from time to time prior to the right to day which is the fifty-four (54) month anniversary of the Closing Date, request an increase in the aggregate Commitments up to an aggregate of $400,000,000; provided that, in the event the Borrower has reduced the Commitments pursuant to Section 2.5, the amount of the Commitments (provided that the aggregate amount of such increases any increase in the Commitments pursuant to this Section 2.6 shall not exceed $55,000,000) by providing written notice to 100,000,000. At the time of sending such notice, the Borrower (in consultation with the Agent, ) shall specify the time period within which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of is requested to respond to such request. Each existing Lender shall have respond within such time period to the right Agent as to whether or not it agrees to increase its Commitment and, if so, whether by an amount so that such Lender's equal to or less than its Commitment Percentage shall not be decreased as a result of such requested increase in the Commitmentsincrease. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Any Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent not responding within such time period, then such Lender period shall be deemed to have declined to increase its Commitment. No The Agent shall notify the Borrower and each Lender shall be required of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also (i) request that one or more other Lenders, in their sole and absolute discretion, nonratably increase its Commitment and any new Lender(stheir Commitment(s) becoming a party and/or (ii) invite additional Eligible Assignees to this Agreement in connection with any such requested increase must be an Eligible Assignee. In become Lenders under the event a new Lender or Lenders become a party to terms of this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus .
(b) If any Commitments are increased in accordance with this Section, the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Agent and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on determine the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier datethe “Increase Effective Date”). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents The Agent and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, promptly confirm in writing to the amount Lenders the final allocation of such Lender's Commitment increase and the Increase Effective Date. As a Competitive Advance Note within two (2) Business Days condition precedent to such increase, the Borrower shall deliver to the Agent a certificate dated as of the effectiveness Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the applicable Borrower (i) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, (ii) including a Compliance Certificate demonstrating pro forma compliance with Section 12.1 after giving effect to such increase and (iii) certifying that before and after giving effect to such increase, the representations and warranties contained in Article 9 are true and correct on and as of the aggregate amount of CommitmentsIncrease Effective Date and no Default exists. The Borrower shall also execute deliver new or amended Notes reflecting the new or increased Commitment of each new or affected Lender as of the Increase Effective Date. The Borrower shall prepay any Libor Balances outstanding on the Increase Effective Date (and deliver pay any costs incurred in connection with such prepayment pursuant to Section 6.5) to the other Lenders replacement Competitive Advance Notes increasing extent necessary to keep outstanding Balances ratable with any revised Commitment Percentages arising from any nonratable increase in the principal face amount thereof Commitments under this Section.
(c) This Section shall supersede any provision in Section 15.10 to 30% of the new Total Commitmentcontrary.
Appears in 1 contract
Increase of Commitments. Subject (a) Upon notice to the approval of the Agent (which who shall not be unreasonably withheld or delayedpromptly notify the Lenders), the Borrower shall have may, from time to time prior to the right to day which is the second anniversary of the Closing Date, request an increase in the combined Commitments up to an aggregate of $250,000,000; provided that in the event the Borrower has reduced the Commitments pursuant to Section 2.5, the amount of the Commitments (provided that the aggregate amount of such increases any increase in the Commitments pursuant to this Section 2.6 shall not exceed $55,000,000) by providing written notice to 50,000,000. At the time of sending such notice, the Borrower (in consultation with the Agent, ) shall specify the time period within which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of is requested to respond to such request. Each existing Lender shall have respond within such time period to the right Agent by whether or not it agrees to increase its Commitment and, if so, whether by an amount so that such Lender's equal to or less than its Commitment Percentage shall not be decreased as a result of such requested increase in the Commitmentsincrease. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Any Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent not responding within such time period, then such Lender period shall be deemed to have declined to increase its Commitment. No The Agent shall notify the Borrower and each Lender shall be required of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also (i) request that one or more other Lenders, in their sole and absolute discretion, nonratably increase its Commitment and any new Lender(stheir Commitment(s), (ii) becoming a party and/or invite additional Eligible Assignees to this Agreement in connection with any such requested increase must be an Eligible Assignee. In become Lenders under the event a new Lender or Lenders become a party to terms of this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus .
(b) If any Commitments are increased in accordance with this Section, the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Agent and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on determine the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier datethe "Increase Effective Date"). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents The Agent and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that promptly confirm in writing to the Lenders the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall deliver to the Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each new Lender) signed by a responsible officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, (ii) including a Compliance Certificate demonstrating pro forma compliance with Section 11.1 after giving effect to such increase, and any existing Lender increasing its Commitment(iii) certifying that before and after giving effect to such increase, receives a new or replacement Note, the representations and warranties contained in Article 8 are true and correct on and as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of CommitmentsIncrease Effective Date and no Default exists. The Borrower shall also execute deliver new or amended Notes reflecting the new or increased Commitment of each new or affected Lender as of the Increase Effective Date. The Borrower shall prepay any Libor Balances outstanding on the Increase Effective Date (and deliver pay any costs incurred in connection with such prepayment pursuant to Section 5.5) to the other Lenders replacement Competitive Advance Notes increasing extent necessary to keep outstanding Balances ratable with any revised Commitment Percentages arising from any nonratable increase in the principal face amount thereof Commitments under this Section.
(c) This section shall supercede any provisions in Section 14.11 to 30% of the new Total Commitmentcontrary.
Appears in 1 contract
Increase of Commitments. Subject (a) The Borrower may from time to time, by written notice to the approval of the Administrative Agent (which shall not be unreasonably withheld or delayedpromptly deliver a copy to each of the Lenders), request that the Borrower shall have the right to request Commitments be increased by an increase amount that is not less than $50,000,000 and an integral multiple of $10,000,000 and that will not result in the aggregate Commitments exceeding $400,000,000. Each such notice shall set forth (i) the requested amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must and (ii) the date on which such increase is to become effective (which shall be an aggregate minimum amount not fewer than forty-five (45) nor more than sixty (60) days after the date of $10,000,000 such notice), and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify offer each Lender of such request. Each existing Lender shall have the right opportunity to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in its ratable share, based on the Commitments. All other allocations of such requested increase shall be subject to the approval pro rata amounts of the AgentCommitments as of the date of the requested increase. Each Lender shall notify shall, by notice to the Borrower and the Administrative Agent within ten given not more than fifteen (1015) Business Days after receipt the date of the AgentBorrower's notice whether such Lender wishes notice, either agree to increase its Commitment by all or a portion of the offered amount of or decline to increase its Commitment. If Commitment (and any Lender that does not deliver such a Lender fails to deliver any such notice to the Agent within such time period, then such Lender period of fifteen (15) Business Days shall be deemed to have declined to increase its Commitment).
(b) In the event that, on the 15th Business Day after the Borrower shall have delivered a notice pursuant to paragraph (a) above, the Lenders shall have agreed pursuant to paragraph (a) above to increase their Commitments by an aggregate amount less than the increase in the Commitments requested by the Borrower, the Borrower shall offer to the Lenders who have agreed to the ratable increase (the "Increasing Lenders"), the right to increase their Commitments by such unsubscribed amount. No Each such Increasing Lender shall, by notice to the Borrower and the Administrative Agent given not more than ten (10) Business Days after such request, advise the Borrower whether it has elected to an additional increase of all or any portion of such unsubscribed amount (and any Increasing Lender that does not deliver such a notice within such period of ten (10) Business Days shall be required deemed to have declined to further increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible AssigneeCommitment). In the event a new that more than one Increasing Lender or Lenders become a party elects to this Agreement, or if any existing Lender agrees to further increase its Commitment, the Borrower and the Managing Agents shall allocate such Lender shall on the date it becomes a Lender hereunder (or increases its Commitmentadditional amount so as to preserve, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase extent possible, the relative pro rata shares of Commitments) of any outstanding Revolving Loans, by making available the Increasing Lenders prior to such request. If the Agent Increasing Lenders do not subscribe for the account of total unsubscribed amount, the Borrower shall have the right to arrange for one or more banks (any such other Lenders at the Principal Office, bank being called an "Augmenting Lender") to extend Commitments in same day funds, an aggregate amount equal to the sum unsubscribed amount, provided that each Augmenting Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld).
(c) If (and only if) Lenders (including Augmenting Lenders) shall have agreed to increase their Commitments or to extend new Commitments in an aggregate amount not less than $50,000,000, such increases and such new Commitments shall become effective on the date specified in the notice delivered by the Borrower pursuant to paragraph (a) ); provided that the portion of the outstanding principal amount of Borrower and any Augmenting Lender shall deliver such Revolving Loans to Notes, opinions, certificates and other documentation as may be purchased by such Lender plus (b) the aggregate amount of payments previously made requested by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and Administrative Agent as of such date on such portion of the outstanding principal amount of such Revolving Loansdate. The Borrower Administrative Agent shall also pay enter any modifications made to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments Register maintained pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 8.5(c).
Appears in 1 contract
Sources: Credit Agreement (Harris Corp /De/)
Increase of Commitments. Subject (a) If, prior to and after giving effect to any increase in the Commitments pursuant to this Section 2.20, no Default, Event of Default or Material Adverse Effect shall have occurred and be continuing, the Borrower may at any time and from time to time, but in no event more than two (2) times in any fiscal year, request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $10,000,000, (ii) the cumulative increase in Commitments pursuant to this Section 2.20 shall not exceed $125,000,000, (iii) the Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Commitments shall not exceed $300,000,000 without the approval of the Required Lenders. The Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall so notify the Administrative Agent in writing no later than twenty (20) days after receipt by the Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall, in each case, execute an agreement (a “Commitment Increase Agreement”), in substantially the form attached hereto as Exhibit B, with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the Administrative Agent within such period that it will increase its Commitment shall be deemed to have rejected such offer to increase its Commitment. No Lender shall have any obligation whatsoever to agree to increase its Commitment. Any agreement to increase a Lender’s pro rata share of the increased Commitment shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of such unsubscribed portion of the Commitments (provided that the aggregate amount of such increases in the increased Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Administrative Agent. Each Lender shall notify the Agent Promptly and in any event within ten five (105) Business Days after receipt of notice from the Agent's notice whether such Lender wishes to increase the amount Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Commitments shall execute and deliver to the Administrative Agent a New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit C, setting forth its Commitment. If , and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase its Commitment. No the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Commitment of any New Lender shall be required an amount not less than $5,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment and Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(e) If any new Lender(sbank or financial institution becomes a New Lender pursuant to Section 2.20(c) becoming a party or any Lender’s Commitment is increased pursuant to this Agreement Section 2.20(a), additional Revolving Loans made on or after the effectiveness thereof (the “Re-Allocation Date”) shall be made pro rata based on their respective Commitments in connection with effect on or after such Re-Allocation Date (except to the extent that any such requested increase must be pro rata borrowings would result in any Lender making an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase aggregate principal amount of Revolving Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
Appears in 1 contract
Increase of Commitments. Subject (a) At any time prior to the approval Termination Date upon 30 days' notice in writing to the Agent and the Banks, the Company may request that the Aggregate Commitment be increased to an amount up to but not exceeding Four Hundred Million Dollars ($400,000,000). Upon receipt of such request, each Bank may in its sole discretion agree to increase its Commitment to an amount equal to its Commitment Percentage of the increased Aggregate Commitment by notice to the Company and the Agent not more than 20 days after the giving of notice by the Company to the Banks. If any Bank elects not to increase its Commitment or does not reply to the Company's notice within the specified time, such Bank's Commitment shall remain at its original amount and its Commitment Percentage of the Aggregate Commitment shall be adjusted accordingly.
(b) If the Company does not receive the agreement of any or all of the Banks to increase the Aggregate Commitment as requested, the Company may request any other of the Banks on a pro rata basis to increase its Commitment and if none of the Banks agrees to such further increase in its Commitment, the Company may request one or more other banks, with the consent of the Agent (which shall not be unreasonably withheld or delayedwithheld), the Borrower shall have the right to request an increase in the aggregate amount assume all or a ratable part of the Commitments (provided that the aggregate amount increased Aggregate Commitment. Upon agreement of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender Bank or Lenders become a party to this AgreementBanks, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of upon such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender bank becoming a party hereto shall execute such documents pursuant to Section 10.08, the Aggregate Commitment and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such LenderBank's Commitment and Commitment Percentage shall be entered on a Competitive Advance Note within two new Schedule 2.01 to be effective on the date requested by the Company and agreed by the Banks (2) Business Days of the effectiveness of "Increase Date"). From and after the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver Increase Date to the other Lenders replacement Competitive Advance Notes increasing Termination Date, the principal face amount thereof Company may borrow, repay and reborrow pursuant to 30% Section 2.01. Any reimbursement of outstanding Letters of Credit on and after the new Total CommitmentIncrease Date shall be in accordance with the Commitment Percentage of each Bank as modified (if any) on the Increase Date.
Appears in 1 contract
Sources: Credit Agreement (Ceridian Corp)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)Agent, the Borrower shall have the right to request an increase in the aggregate amount of the Commitments (by providing written notice to the Agent, which notice shall be irrevocable once given; provided that (a) the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000125,000,000 (the “Available Increase Amount”); (b) by providing written notice Borrower may not exercise its rights pursuant to this Section 2.14 more than three (3) times; and (c) Borrower may not exercise its rights under this Section 2.14 if there are less than six (6) full months to the Agent, which notice shall be irrevocable once givenRevolving Loan Termination Date. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 25,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's ’s Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's ’s notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. As a condition to any increase in the Commitment, the Borrower shall pay to the Agent such fees as it may require in connection with the arrangement of such increase, and to the Lenders acquiring such increase such fees as they may require in connection therewith, which fees shall, when paid, be fully earned and non-refundable under any circumstances. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j2.3(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by or on behalf of the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In addition, as a condition to the effectiveness of any increase, the Borrower and the Guarantors shall execute and deliver to Agent and the Lenders such additional documents (including, without limitation, amendments to the Security Documents), instruments, certifications and opinions as the Agent may reasonably require, and the Borrower shall pay the cost of any mortgagee’s title insurance policy or any endorsement or update thereto or any updated title and UCC searches, all recording costs and fees, and any and all intangible taxes or other documentary or mortgage taxes, assessments or charges or any similar fees, taxes or expenses which are demanded or payable in connection with such increase. In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Revolving Note, as appropriate, in the amount of such Lender's ’s Commitment and a Competitive Advance Note within two (2) Business Days contemporaneously with of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower Upon the effective date of the increase in the aggregate Total Commitments pursuant to this Section 2.14, Wachovia shall also execute and deliver assign a portion of its Revolving Note equal to the other amount of such increase acquired by the Lenders replacement Competitive Advance Notes increasing the principal face or an assignee and such amount thereof to 30% shall become part of the new aggregate Total Commitment.
Appears in 1 contract
Increase of Commitments. Subject (a) Upon notice to the approval of the Agent (which who shall not be unreasonably withheld or delayedpromptly notify the Lenders), the Borrower shall have may, from time to time prior to the right to day which is the thirty (30) month anniversary of the Closing Date, request an increase in the aggregate Commitments up to an aggregate of $250,000,000; provided that, in the event the Borrower has reduced the Commitments pursuant to Section 2.5, the amount of the Commitments (provided that the aggregate amount of such increases any increase in the Commitments pursuant to this Section 2.6 shall not exceed $55,000,000) by providing written notice to 50,000,000. At the time of sending such notice, the Borrower (in consultation with the Agent, ) shall specify the time period within which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of is requested to respond to such request. Each existing Lender shall have respond within such time period to the right Agent as to whether or not it agrees to increase its Commitment and, if so, whether by an amount so that such Lender's equal to or less than its Commitment Percentage shall not be decreased as a result of such requested increase in the Commitmentsincrease. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Any Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent not responding within such time period, then such Lender period shall be deemed to have declined to increase its Commitment. No The Agent shall notify the Borrower and each Lender shall be required of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also (i) request that one or more other Lenders, in their sole and absolute discretion, nonratably increase its Commitment and any new Lender(stheir Commitment(s) becoming a party and/or (ii) invite additional Eligible Assignees to this Agreement in connection with any such requested increase must be an Eligible Assignee. In become Lenders under the event a new Lender or Lenders become a party to terms of this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus .
(b) If any Commitments are increased in accordance with this Section, the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Agent and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on determine the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier datethe "Increase Effective Date"). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents The Agent and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, promptly confirm in writing to the amount Lenders the final allocation of such Lender's Commitment increase and the Increase Effective Date. As a Competitive Advance Note within two (2) Business Days condition precedent to such increase, the Borrower shall deliver to the Agent a certificate dated as of the effectiveness Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the applicable Borrower (i) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, (ii) including a Compliance Certificate demonstrating pro forma compliance with Section 12.1 after giving effect to such increase and (iii) certifying that before and after giving effect to such increase, the representations and warranties contained in Article 9 are true and correct on and as of the aggregate amount of CommitmentsIncrease Effective Date and no Default exists. The Borrower shall also execute deliver new or amended Notes reflecting the new or increased Commitment of each new or affected Lender as of the Increase Effective Date. The Borrower shall prepay any Libor Balances outstanding on the Increase Effective Date (and deliver pay any costs incurred in connection with such prepayment pursuant to Section 6.5) to the other Lenders replacement Competitive Advance Notes increasing extent necessary to keep outstanding Balances ratable with any revised Commitment Percentages arising from any nonratable increase in the principal face amount thereof Commitments under this Section.
(c) This Section shall supersede any provision in Section 15.11 to 30% of the new Total Commitmentcontrary.
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the a) The Borrower shall have the right right, not less than 90 days prior to the Termination Date, to request an increase in writing, from time to time (but not more than five times), that the aggregate amount of the Commitments then in effect be increased effective upon a specific date (provided the "INCREASE EFFECTIVE DATE") set forth in such request (the "INCREASE REQUEST"); PROVIDED that no such increase shall be permitted if, after giving effect thereto the total aggregate Commitments would exceed $400,000,000. Any such increase shall be in an incremental aggregate amount of such increases not less than, in the case of the first such increase, $15,000,000 and in the case of any subsequent increase not less than the lesser of (i) $25,000,000 or (ii) $400,000,000 minus the amount of the total aggregate Commitments pursuant then in effect (the "REQUESTED AMOUNT") and shall increase permanently the amount of the total aggregate Commitments then in effect.
(b) If on the date (the "INCREASE RESPONSE DATE") that is 30 days after the date of any Increase Request any Lenders or prospective Lenders elect in their sole discretion, to this Section shall not exceed $55,000,000increase their Commitments (each an "INCREASING LENDER") by providing written notice an aggregate amount equal to the AgentRequested Amount, then, subject to the provisions of this subsection 2.3, on the Increase Effective Date therefor, which notice shall be irrevocable once given. Each such increase in five Business Days after the Increase Response Date, the Commitments must of such Increasing Lenders, and correspondingly, the total aggregate Commitments, shall be an aggregate minimum amount increased accordingly. Notwithstanding any provision of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each this Agreement to the contrary, any notice by any Lender of such request. Each existing Lender shall have the right its willingness to increase its Commitment shall be revocable by such Lender in its sole and absolute discretion at any time prior to the related Increase Effective Date.
(c) Each increase in the Commitment of an Increasing Lender shall be evidenced by a written instrument executed by such Increasing Lender, the Borrower and the Administrative Agent, and shall take effect on the related Increase Effective Date.
(d) Upon the request to the Administrative Agent by any Increasing Lender, the Borrower shall deliver to each such Increasing Lender, in exchange for the Note held by such Increasing Lender, a new Note, in the principal amount so that of such Increasing Lender's Commitment Percentage after giving effect to the adjustments made pursuant to this subsection 2.3.
(e) If any Lenders or prospective Lenders shall have elected to increase their Commitments as provided in this subsection 2.3, then as of the related Increase Effective Date (i) the Commitments of each Increasing Lender shall take effect and (ii) the Commitments of the Lenders which are not be decreased as Increasing Lenders shall remain constant. In the event any Increasing Lender is not a result of Lender prior to the related Increase Effective Date, such requested increase in the Commitments. All other allocations of such requested increase Increasing Lender shall be subject to approval by the Borrower and the Administrative Agent (such approval of not to be unreasonably withheld) and such Increasing Lender, the Agent. Each Borrower and the Administrative Agent shall execute and deliver a joinder agreement (a "JOINDER AGREEMENT") in form and substance reasonably satisfactory to the Administrative Agent pursuant to which such Increasing Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement.
(f) From and after any Increase Effective Date, or if any existing the Borrower and the Administrative Agent shall cooperate in making conversions of the Eurodollar Loans from one interest rate basis to another and in selecting Interest Periods to be applicable thereto in order, during a reasonable period following the Increase Effective Date, to make the Loans of each Lender agrees to increase its Commitment, such Lender shall ratable (based on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its their respective Commitment Percentage (as determined Percentages after giving effect to the increase of Commitmentsincreased Commitments hereunder) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentvarious Tranches.
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Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)a) At any time, the Borrower may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (i) the Aggregate Commitment shall have the right to request an increase in at no time exceed $80,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section 2.09; (ii) the Borrower shall not exceed $55,000,000make any such request during the six month period following any reduction in the Aggregate Commitment previously made pursuant to Section 2.09; (iii) by providing written notice the Borrower shall not be entitled to the Agent, which notice make any such request more frequently than once in each 12-month period; and (iv) each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 5,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within date that is ten (10) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender ten (10) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Administrative Agent shall have the right, in consultation with the Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required consented to increase by the Administrative Agent (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amount shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Borrower shall have obtained the consent thereto of each Subsidiary Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Event of Default, (C) the Borrower, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit D hereto, (D) counsel for the Borrower and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrower and each Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Borrower. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment at any time.
(b) For purposes of this clause (b), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment, and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice, (B) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such requested increase must be an Eligible Assigneein the Aggregate Commitment and (C) the term “Percentage” shall mean with respect to any Lender, the percentage obtained by dividing (w) such Lender’s Commitment at such time (as adjusted from time to time in accordance herewith) by (x) the total Commitments at such time (as adjusted from time to time in accordance herewith); provided, if all of the Commitments are terminated pursuant hereto, then “Percentage” means the percentage obtained by dividing (y) such Lender’s Revolving Credit Exposures by (z) the total Revolving Credit Exposures of all the Lenders. In Effective on the event a new effective date of any increase in the Aggregate Commitment pursuant to clause (a) above, each Selling Lender or Lenders become a party hereby sells, grants, assigns and conveys to this Agreementeach Buying Lender, without recourse, warranty, or if representation of any existing Lender agrees kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to increase its CommitmentRevolving Credit Exposure in the respective Dollar Amounts and percentages necessary so that, from and after such Lender sale, each such Selling Lender’s Revolving Credit Exposure shall equal such Selling Lender’s Percentage (calculated based upon the Effective Commitment Amounts) of the aggregate Revolving Credit Exposures. Effective on the effective date it becomes a Lender hereunder (or increases its Commitment, of the increase in the case of an existing LenderAggregate Commitment pursuant to clause (a) (above, each Buying Lender hereby purchases and as a condition thereto) purchase accepts such grant, assignment and conveyance from the other Lenders Selling Lenders. Each Buying Lender hereby agrees that its Commitment respective purchase price for the portion of the Revolving Credit Exposure purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s Revolving Credit Exposure shall equal such Buying Lender’s Percentage (as determined after giving effect calculated based upon the Effective Commitment Amounts) of the aggregate Revolving Credit Exposures. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the increase Administrative Agent. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Revolving Credit Exposure being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of Commitments) of any outstanding Revolving its interest in such Loans, by making available except for participations which will be extinguished upon payment to the Agent for the account Selling Lender of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased Credit Exposure being sold by such Selling Lender. Each Buying Lender plus (b) hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the aggregate amount foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of payments previously made by its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansLoan Documents. The Borrower shall also pay hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment sale and assignment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurocurrency Loan hereunder on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase terms and in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements manner as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, set forth in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 2.16 hereof.
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Sources: Credit Agreement (Heidrick & Struggles International Inc)
Increase of Commitments. Subject (i) At any time prior to the approval Facility Termination Date, the Company may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Agent Lenders, (which a) the Aggregate Commitment shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in at no time exceed $150,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section shall not exceed $55,000,0002.6.2; and (b) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required consented to increase by the Administrative Agent (which consent shall not be unreasonably withheld). If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) the Company shall have obtained the consent thereto of each Guarantor and its reaffirmation of the Loan Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (C) the Borrowers, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit I hereto, (D) counsel for the Borrowers and for the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent and (E) the Borrowers and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Company. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Company and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder and thereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment, and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and (b) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such requested increase must be an Eligible Assigneein the Aggregate Commitment. In Effective on the event a new effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender or Lenders become a party hereby sells, grants, assigns and conveys to this Agreementeach Buying Lender, without recourse, warranty, or if representation of any existing Lender agrees kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to increase its Commitmentoutstanding Loans in the respective dollar amounts and percentages necessary so that, from and after such Lender sale, each such Selling Lender’s outstanding Loans shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans. Effective on the effective date it becomes a of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereunder hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the outstanding Loans purchased hereby shall equal the respective dollar amount necessary so that, from and after such payments, each Buying Lender’s outstanding Loans shall equal such Buying Lender’s Pro Rata Share (or increases its Commitmentcalculated based upon the Effective Commitment Amounts) of the outstanding Loans. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the Administrative Agent. The Administrative Agent, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect turn, shall wire transfer any such funds received to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal OfficeSelling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Loans being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Loans, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased being sold by such Selling Lender. Each Buying Lender plus (b) hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the aggregate amount foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of payments previously made by its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Administrative Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansLoan Documents. The Borrower shall also pay Borrowers hereby agree to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment sale and assignment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Loan hereunder on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase terms and in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements manner as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, set forth in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 3.4.
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Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase increases in the aggregate amount of the Commitments (provided that there shall be no more than three such increases in the Commitments and the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000350,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 35,000,000 and integral multiples of $1,000,000 10,000,000 in excess thereof. The Agent shall promptly notify each Lender of any such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) 10 Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (bB) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e2.2.(e) or 2.4(j2.3.(j) which have not been repaid, and the Borrower shall pay to such other Lenders repaid plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 4.4. as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor Loan Party in any Loan Document to which any such Obligor Loan Party is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (Aa) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (Bb) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) 2 Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.
Appears in 1 contract
Increase of Commitments. Subject to the approval (a) If no Default or Event of the Agent (which Default shall not have occurred and be unreasonably withheld or delayed)continuing, the Borrower shall have may at any time from time to time prior to the right Revolving Termination Date request one or more increases of the Revolving Commitments by notice to request an the Administrative Agent in writing of the amount of such proposed increase in (each such notice, a “Commitment Increase Notice”); provided, however, that, the aggregate amount of the Revolving Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section as so increased shall not exceed $55,000,000) by providing written notice 75,000,000. Any such Commitment Increase Notice delivered with respect to the Agent, which notice shall be irrevocable once given. Each such any proposed increase in the Revolving Commitments must be may offer one or more Revolving Lenders an aggregate minimum amount opportunity to subscribe for its Applicable Percentage (with respect to the existing Revolving Commitments (prior to such increase)) of $10,000,000 and integral multiples of $1,000,000 in excess thereofthe increased Revolving Commitments. The Administrative Agent shall promptly shall, within five (5) Business Days after receipt of a Commitment Increase Notice, notify each Lender of such request. Each existing Lender shall have the right desiring to increase its Revolving Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Administrative Agent within in writing no later than ten (10) Business Days after receipt of notice from the Administrative Agent's notice whether such . Any Lender wishes to increase that does not notify the amount of its Commitment. If a Lender fails to deliver any such notice to the Administrative Agent within such the time period, then such Lender shall period specified above that it will increase its Revolving Commitment will be deemed to have declined rejected such offer. Any agreement by a Lender to increase its Commitment. No Lender Revolving Commitment shall be required irrevocable.
(b) If any proposed increase in the Revolving Commitments is not fully subscribed by the existing Lenders pursuant to increase the procedure outlined in Section 2.18(a) preceding, the Borrower may, in its Commitment and any new Lender(s) becoming a party sole discretion, offer to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees or to increase its Commitment, such Lender shall on one or more additional banks or financial institutions the date it becomes opportunity to participate in all or a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account portion of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the unsubscribed portion of the outstanding principal amount increased Revolving Commitments, by notifying the Administrative Agent. Promptly and in any event within five (5) Business Days after receipt of notice from the Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders or to the additional banks or financial institutions identified therein, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such unsubscribed portion of the outstanding principal amount of such increased Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either Commitments.
(xc) a Default Any additional bank or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to financial institution which any such Obligor is a party is not (or would not be) true or correct in all material respects on an existing Lender and which accepts the effective date of such increase (except for representations or warranties which expressly relate solely Borrower’s offer to an earlier date). In connection with any increase participate in the aggregate amount of the increased Revolving Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing Administrative Agent and the principal face amount Borrower a new lender assumption agreement (in form and substance satisfactory to the Administrative Agent and the Required Lenders) (a “New Lender Agreement”) setting forth its Revolving Commitment (subject to the limitations on the amounts thereof set forth herein), and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Revolving Lender for all purposes and to 30% the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the new Total Commitmentsignature pages hereof shall be deemed to be amended to add the name of such New Lender. Upon any increase in the Revolving Commitments pursuant to this Section 2.19, the Schedule 1.1A shall be deemed amended to reflect the Revolving Commitment of each Lender (including any New Lender) as thereby increased.
Appears in 1 contract
Sources: Credit Agreement (Perficient Inc)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)At any time, the Borrower may request that the Aggregate Commitment be increased; provided that (a) the Aggregate Commitment shall have the right to request an increase in at no time exceed $300,000,000 minus the aggregate amount of all reductions in the Commitments Aggregate Commitment previously made pursuant to Section 2.6(A), (provided that the aggregate b) each such request shall be in a minimum amount of such increases at least $10,000,000 and increments of $5,000,000 in excess thereof and (c) the Commitments Aggregate Commitment may not be increased more than twice pursuant to this Section 2.6. Such request shall not exceed $55,000,000) by providing be made in a written notice given to the AgentAgent and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall be irrevocable once given. Each such specify the amount of the proposed increase in the Commitments must be an aggregate minimum amount of $10,000,000 Aggregate Commitment and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender the proposed effective date of such requestincrease. Each existing Lender shall have In the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in the Commitments. All other allocations of such requested increase shall be subject proportions that their respective Commitments bear to the approval of Aggregate Commitment under this Agreement. On or prior to the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No In the event that the increases of Commitments set forth in the Lender Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Agent and the Arranger shall have the right, with the consent of the Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required subject to increase the consent of the Agent and, provided that JPMorgan is at such time the Principal Issuing Lender, JPMorgan in its capacity as such (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices (subject to clause (d) above). Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) becoming and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a party Default or Unmatured Default, (B) the Borrower, the Agent, provided that JPMorgan is at such time the Principal Issuing Lender, JPMorgan in its capacity as such, and each Proposed New Lender or Lender that shall have agreed to this Agreement provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a Commitment and Acceptance substantially in the form of Exhibit D hereto (a “Commitment and Acceptance”), (C) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (D) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any fee shall be charged by the Lenders in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitmentincrease, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default fee shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Borrower or any other Obligor in any Loan Document Agent to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date)Borrower. In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within No less than two (2) Business Days prior to the effective date of the effectiveness increase of the applicable Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its request for the commitment increase. Upon satisfaction of the conditions precedent to any increase in the aggregate amount of Commitments. The Aggregate Commitment, the Agent shall promptly advise the Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% each Lender of the new Total Commitmenteffective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the a) The Borrower shall have the right at any time prior to request an the Termination Date, but not more than once per Facility Year, to increase in the aggregate principal amount of the Commitments by not more than $35,000,000 by, at its option, (provided i) requesting that the Lenders increase the aggregate principal amount of such increases their Commitments in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum a principal amount of not less than $10,000,000 and 5,000,000 or an integral multiples multiple of $1,000,000 in excess thereof. The thereof or (ii) adding to this Agreement as Lenders, with the approval of the Administrative Agent (which approval shall not be unreasonably withheld), one or more Eligible Assignees, provided that the Commitment of any such Eligible Assignee shall be in a -------- principal amount of not less than $10,000,000.
(b) In the event that the Borrower exercises its option pursuant to clause (i) of Section 2.14(a), the Administrative Agent shall promptly notify each Lender of such request. Each existing , and each Lender shall have in turn, in its sole discretion, within 21 days after receipt of such notice, notify the right Administrative Agent in writing, which notice shall be irrevocable, (i) of the principal amount by which it agrees to increase its Commitment by an amount so that (with respect to each such Lender's Commitment Percentage shall , its "Proposed Increased Commitment") or (ii) that it does not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined ----------------------------- agree to increase its Commitment. No In no event shall a Lender's Proposed Increased Commitment exceed the principal amount of the increase requested by the Borrower. If any Lender shall be required fail to increase notify the Administrative Agent in writing of its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees decision to increase its Commitment, such Lender shall on be deemed not to agree to an increase. The Administrative Agent shall promptly allocate the requested increase in the Commitments pro rata in accordance with each Lender's Proposed Increased Commitment and notify the Borrower and the Lenders of such allocation and the date it becomes such increase shall be effective (with respect to increases in the aggregate principal amount of the Commitments effected pursuant to this Section 2.14(b), the "Increased Commitment Date"), which date ------------------------- shall be not less than 3 Business Days after such notification has been given to the Borrower and the Lenders. Any Lender that has not responded to the Borrower's request to increase its Commitment within 21 days of receipt of such request shall be deemed to have refused such request. In no event shall a Lender's allocated share of the increased Commitments exceed its Proposed Increased Commitment.
(c) In the event that the Borrower exercises its option pursuant to clause (ii) of Section 2.14(a), such Eligible Assignee shall promptly deliver to the Administrative Agent an agreement in form and substance satisfactory to the Borrower and the Administrative Agent. Upon the effective date of such agreement, such Eligible Assignee shall become a Lender hereunder (with respect to increases in the aggregate principal amount of the Commitments effected pursuant to this Section 2.14(c), the "Increased Commitment Date") and the ------------------------- Administrative Agent shall record the information reflecting such agreement in the Register.
(d) Notwithstanding any other provision of this Section 2.14, the right of the Borrower to increase the aggregate principal amount of the Commitments shall be subject to the following conditions:
(i) no Default shall have occurred and be continuing as of the date of the Borrower's request referred to in Section 2.14(a) or increases its Commitmenton the Increased Commitment Date;
(ii) no Revolving Credit Advances shall be outstanding hereunder and no Notice of Revolving Credit Borrowing shall have been given, in each case, on and as of any such Increased Commitment Date, or, if any Revolving Credit Advances shall be outstanding hereunder on any such Increased Commitment Date, the Borrower shall, on any such Increased Commitment Date, notwithstanding any provisions contained herein regarding the minimum amount or pro rata nature of such borrowing or prepayment (A) borrow Base Rate Advances (or, if such Increased Commitment Date falls on the last day of an Interest Period for outstanding Revolving Credit Advances, Eurodollar Rate Advances)
(1) from the Lenders increasing their Commitments (in the case of an existing Lenderincrease effected pursuant to Section 2.14(b)) or (2) from the Eligible Assignees becoming Lenders (in the case of an increase effected pursuant to Section 2.14(c)) and as a condition thereto(B) purchase from prepay Eurodollar Rate Advances and Base Rate Advances owing to the other Lenders its Commitment Percentage in such amounts and of such Types such that, after giving effect thereto, all of the Eurodollar Rate Advances, and all of the Base Rate Advances, shall be allocated among the Lenders pro rata in accordance with the amounts of their respective Commitments (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsectionCommitments), all in accordance with Section 2.09 (A) other than any Lender becoming a party hereto shall execute provision regarding the minimum amount of such documents and agreements as the Agent may reasonably request and prepayment contained therein); and
(Biii) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in not have reduced the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver Commitments pursuant to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 2.04(a).
Appears in 1 contract
Sources: Credit Agreement (New England Investment Companies L P)
Increase of Commitments. Subject (i) At any time prior to the approval Conversion Date, the Company may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Agent Lenders, (which a) the Aggregate Commitment shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in at no time exceed $300,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section shall not exceed $55,000,0002.6.3; and (b) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 25,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a "COMMITMENT INCREASE NOTICE") shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a "LENDER INCREASE NOTICE"). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new that the increases of Commitments set forth in the Lender or Lenders become a party to this AgreementIncrease Notices exceed the amount requested by the Company in the Commitment Increase Notice, or if any existing Lender agrees to increase its Commitment, such Lender the Administrative Agent and the Arranger shall on have the date it becomes a Lender hereunder (or increases its Commitmentright, in consultation with the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if anyCompany, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in allocate the amount of such Lenderincreases necessary to meet the Company's Commitment and a Competitive Advance Note within two Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Company, not later than three (23) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver prior to the other Lenders replacement Competitive Advance Notes increasing proposed effective date the principal face amount thereof to 30% Company may notify the Administrative Agent of the new Total Commitment.any financial institution that shall have agreed
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (L&c Spinco Inc)
Increase of Commitments. Subject (i) If no Default or Event of Default shall have occurred and be continuing, upon written notice to Administrative Agent (each such notice, a “Commitment Increase Notice”), Borrower may from time to time prior to the approval of the Agent (which shall not be unreasonably withheld or delayed)Maturity Date, the Borrower shall have the right to request an increase of the Aggregate Commitments (but not the L/C Sublimit) by an amount (for all such requests) not exceeding Seventy Five Million Dollars ($75,000,000); provided that, (i) any such request for an increase shall be in the aggregate a minimum amount of the Commitments Twenty Five Million Dollars (provided that the aggregate amount $25,000,000); and (ii) Borrower may make a maximum of two (2) such increases in the Commitments pursuant requests. Any such Commitment Increase Notice delivered with respect to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such any proposed increase in the Commitments must be Commitment may offer one or more Lenders an aggregate minimum amount opportunity to subscribe for its Applicable Percentage (with respect to the existing Commitment (prior to such increase)) of $10,000,000 and integral multiples of $1,000,000 in excess thereofthe increased Aggregate Commitments. The Administrative Agent shall promptly promptly, and in any event within five (5) Business Days after receipt of a Commitment Increase Notice, notify each Lender of such request. Each existing Lender shall have the right desiring to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Administrative Agent within in writing no later than ten (10) Business Days after receipt of notice from Administrative Agent. Any Lender that does not notify Administrative Agent within the Agent's notice whether time period specified above that it will, in its sole discretion, increase its Commitment will be deemed to have rejected such offer. Any agreement by a Lender wishes to increase its Commitment shall be irrevocable.
(ii) If any proposed increase in the amount Commitment is not fully subscribed by the existing Lenders pursuant to the procedure outlined in Section 2.06(b)(i), Borrower may, in its sole discretion, offer to any existing Lender or to one or more additional banks or financial institutions which is an Eligible Assignee (each, a “New Lender”) the opportunity to participate in all or a portion of such unsubscribed portion of the increased Aggregate Commitments, by notifying Administrative Agent in writing. Promptly and in any event within five (5) Business Days after receipt of notice from Borrower of its Commitment. If desire to offer such unsubscribed commitments to certain existing Lenders or to any New Lender identified therein, Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Aggregate Commitments.
(iii) Any New Lender which accepts Borrower’s offer to participate in the increased Commitment shall execute and deliver to Administrative Agent and Borrower a New Lender Addendum, an Administrative Questionnaire and such other documents, instruments and agreements as Administrative Agent may reasonably request, and upon the receipt thereof and the effectiveness of such New Lender Addendum such New Lender shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender.
(iv) If the Aggregate Commitments are increased in accordance with this Section, Administrative Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase its Commitment. No Lender and the Increase Effective Date.
(v) As a condition precedent to such increase, Borrower shall be required deliver to increase its Commitment Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and any new Lender(sattaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (Borrower, certifying that, before and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loanssuch increase, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by representations and warranties contained in Article VI and the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Loan Documents are true and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on and as of the effective date of Increase Effective Date, except that (x) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such increase representation and warranty shall be required to be true and correct in all respects, (except for y) to the extent that such representations or and warranties which expressly relate solely specifically refer to an earlier date). In connection with any increase , in which case they are true and correct as of such earlier date, and (z) for purposes of this Section 2.06, the aggregate amount representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the Commitments most recent statements furnished pursuant to this subsectionsubsections (a) and (b), (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request respectively, of Section 7.01, and (B) the no Default exists. Borrower shall make appropriate arrangements so that each new Lender, prepay any Loans outstanding on the Increase Effective Date (and pay any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.additional amounts required pursuant to
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Increase of Commitments. Subject (i) At any time prior to the approval Facility Termination Date, the Company may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Agent Lenders, (which a) the Aggregate Commitment shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in at no time exceed $152,500,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section 2.6.3; (b) the Combined Commitment shall not at no time exceed $55,000,000255,000,000; and (c) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 25,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a "COMMITMENT INCREASE NOTICE") shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a "LENDER INCREASE NOTICE"). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new that the increases of Commitments set forth in the Lender or Lenders become a party to this AgreementIncrease Notices exceed the amount requested by the Company in the Commitment Increase Notice, or if any existing Lender agrees to increase its Commitment, such Lender the Administrative Agent and the Arranger shall on have the date it becomes a Lender hereunder (or increases its Commitmentright, in consultation with the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if anyCompany, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in allocate the amount of such Lenderincreases necessary to meet the Company's Commitment and a Competitive Advance Note within two Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Company, not later than three (23) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver prior to the other Lenders replacement Competitive Advance Notes increasing proposed effective date the principal face amount thereof Company may notify the Administrative Agent of any financial institution that shall have agreed to 30% of become a "Lender" party hereto (a "PROPOSED NEW LENDER") in connection with the new Total Commitment.Commitment Increase Notice. Any Proposed New Lender
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the The Borrower shall have the right at any time and from time to time from the Closing Date through and including the Termination Date to request an increase increases in the aggregate amount of the Commitments (provided that the aggregate amount of such after giving effect to any increases in the Commitments pursuant to this Section shall Section, the aggregate amount of increases to the Commitments may not exceed $55,000,000300,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. The Agent shall deliver a copy of such notice to each Lender promptly upon receipt thereof. Each such increase in the Commitments must be in an aggregate minimum amount of $10,000,000 25,000,000 and $5,000,000 integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject Notwithstanding anything herein to the approval contrary, the limits set forth in Sections 2.04(a) with respect to Swingline Loans and 2.05
(a) with respect to Letters of Credit shall remain applicable following any increase of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its CommitmentCommitments in accordance with this Section 2.25. No Lender shall be required to increase its Commitment and each Lender may decline to increase its Commitment LEGAL02/33546501v8 in its sole discretion. If any new Lender(s) becoming a party Lender shall fail to this Agreement respond, such Lender will have deemed to have declined. The Agent shall allocate any increase in connection with any the Commitments to existing Lenders willing to increase their respective Commitments prior to the allocation of such requested increase must be an Eligible Assignee. In the event a to any new Lender or Lenders to become a party to this Agreement. All such allocations shall be in the Agent’s sole discretion but not in an amount in excess of each such Lender’s increased Commitment. If a new Lender becomes a party to this Agreement as provided herein, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage pro rata share (or in the case of an existing Lender, the increase in the amount of its pro rata share, in each case as determined after giving effect to the increase of the Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal OfficeLenders, in same day funds, an amount equal to the sum of (aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (bB) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 2.14 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either the following conditions are not met immediately prior to such increase and immediately after giving effect thereto, (xi) a no Default or Event of Default shall be in existence on exist and (ii) the effective date of such increase or (y) any representation or warranty representations and warranties made or deemed made by the Borrower or any other Obligor in any the Loan Document to which any such Obligor is a party is not (or would not be) Documents, shall be true or and correct in all material respects on and as of the effective date of such increase (extension with the same force and effect as if made on and as of such date except for to the extent that such representations or and warranties which expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date)) and except for changes in factual circumstances not prohibited under the Loan Documents. In connection with any increase in the aggregate amount of the Commitments pursuant to this subsectionSection, (Aa) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (Bb) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's ’s Commitment and a Competitive Advance Note within two (2) five Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentsuch Lender’s request therefor.
Appears in 1 contract
Sources: Credit Agreement (Scana Corp)
Increase of Commitments. Subject to the approval (a) So long as no Default or Event of the Agent (which shall not be unreasonably withheld or delayed)Default has occurred and is continuing, the Borrower shall have the right to request an increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) Company may by providing written notice to the Administrative Agent, which notice shall be irrevocable once given. Each such propose to increase in the Commitments must be an aggregate minimum Aggregate Revolving Commitment Amount (the amount of any such increase, an “Incremental Revolving Commitment”) and/or add one or more incremental term loan facilities (the amount of any such incremental term facility, an “Incremental Term Commitment”, and together with any Incremental Revolving Commitment, “Incremental Commitments”), in each case, in an amount not less than $10,000,000 and integral multiples of $1,000,000 5,000,000 in excess thereofthereof and in an aggregate amount not greater than $100,000,000. The Agent In no event shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to Incremental Commitments cause the sum of the Aggregate Revolving Commitment Amount plus the Aggregate Term Commitment Amount to exceed the Maximum Aggregate Commitment Amount. Each such notice shall specify the date (aeach, an “Increased Amount Date”) on which the Company proposes that any Incremental Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Company may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swing Line Lender, to provide an Incremental Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of the outstanding principal amount of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower Incremental Commitment. Any Incremental Commitment shall pay to such other Lenders interest accrued and unpaid to and become effective as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either Increased Amount Date; provided that:
(xi) a no Default or Event of Default shall be in existence exist on the effective date of such increase Increased Amount Date before or after giving effect to any Incremental Commitment;
(yii) any representation loan made pursuant to such Incremental Commitment (each an “Incremental Advance”) shall be a “Revolving Advance” or warranty made a “Term Loan”, as applicable, for all purposes hereof and shall be subject to the same terms and conditions as the Revolving Advances or deemed made the Term Loans, as applicable, and shall be guaranteed to the same extent as the other Credit Extensions on a pari passu basis;
(iii) such Incremental Commitments shall be effected pursuant to one or more agreements in form and substance satisfactory to the Administrative Agent and the Borrowers executed and delivered by the Borrower Borrowers, the Administrative Agent and the applicable Incremental Lenders (which agreement or agreements may, without the consent of any other Obligor in any Loan Document to which any Lenders, effect such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant amendments to this subsection, (A) any Lender becoming a party hereto shall execute such documents Agreement and agreements the other Loan Documents as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new be necessary or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days opinion of the effectiveness Administrative Agent, to effect the provisions of this Section 2.22); and
(iv) the Company shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the Company authorizing such Incremental Advances (for the avoidance of doubt, resolutions duly adopted by the board of directors (or equivalent governing body)) of the Company delivered pursuant to Section 3.1(c) which authorize such Incremental Advances shall be sufficient as to the Company so long as such resolutions are certified as of the applicable increase Increased Amount Date as remaining in full force and effect) reasonably requested by the aggregate amount Administrative Agent in connection with any such transaction.
(b) The outstanding Revolving Advances and Percentages of CommitmentsSwing Line Advances and L/C Amounts will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders) in accordance with their revised Percentages (and the Lenders (including the Incremental Lenders) agree to make all payments and adjustments necessary to effect such reallocation and the Company shall pay any and all costs required pursuant to Section 2.16 in connection with such reallocation as if such reallocation were a repayment).
(c) On any Increased Amount Date on which any Incremental Commitment becomes effective, each Incremental Lender with an Incremental Commitment shall become a Lender hereunder with respect to such Incremental Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders and shall be included in any determination of the Required Lenders. The Borrower Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(d) In no event shall also execute and deliver the Company make more than three requests for an Incremental Commitment pursuant to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentthis Section 2.22.
Appears in 1 contract
Increase of Commitments. Subject (a) Upon notice to the approval of the Agent (which who shall not be unreasonably withheld or delayedpromptly notify the Lenders), the Borrower may, from time to time prior to the Maturity Date, request one or more increases in the Aggregate Commitments in an aggregate amount of up to $250,000,000; provided that the Aggregate Commitments shall have the right to request an not exceed $750,000,000; provided further that any increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Aggregate Commitments pursuant to this Section 2.6 shall not exceed $55,000,000) by providing written notice to increase the Alternative Currency Sublimit. At the time of sending such notice, the Borrower (in consultation with the Agent, ) shall specify the time period within which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of is requested to respond to such request. Each existing Lender shall have respond within such time period to the right Agent as to whether or not it agrees to increase its Commitment and, if so, whether by an amount so that such Lender's equal to or less than its Commitment Percentage shall not be decreased as a result of such requested increase in the Commitmentsincrease. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Any Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent not responding within such time period, then such Lender period shall be deemed to have declined to increase its Commitment. No The Agent shall notify the Borrower and each Lender shall be required of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also (i) request that one or more other Lenders, in their sole and absolute discretion, nonratably increase its Commitment and any new Lender(stheir Commitment(s) becoming a party and/or (ii) invite additional Eligible Assignees to this Agreement in connection with any such requested increase must be an Eligible Assignee. In become Lenders under the event a new Lender or Lenders become a party to terms of this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus .
(b) If any Commitments are increased in accordance with this Section, the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Agent and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on determine the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier datethe “Increase Effective Date”). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents The Agent and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so promptly confirm in writing to the Lenders the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall deliver to the Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such increase, (ii) including a Compliance Certificate demonstrating pro forma compliance with Article 12 after giving effect to such increase and (iii) certifying that before and after giving effect to such increase, the representations and warranties contained in Article 9 are true and correct on and as of the Increase Effective Date and no Default exists. If requested by the applicable Lenders (through the Agent), the Borrower shall deliver new or amended Notes reflecting the new or increased Commitment of each new Lender, and any existing or affected Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of CommitmentsIncrease Effective Date. The Borrower shall also execute prepay any Libor Loans outstanding on the Increase Effective Date (and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.pay any costs incurred in connection with such prepayment pursuant to
Appears in 1 contract
Increase of Commitments. Subject (a) At any time after the Effective Date, provided that no Event of Default shall have occurred and be continuing, the Borrower may request an increase of the aggregate Commitments by notice thereof to the approval Agent in writing (such notice, a “Commitment Increase Notice”), in an amount not less than $10,000,000 nor more than $25,000,000 in the aggregate provided that the Borrower may provide such a Commitment Increase Notice a maximum of two times during the term of the Loan. The Agent will provide the Lenders with notice of such Commitment Increase Notice. Any such Commitment Increase Notice shall be in a form reasonably satisfactory to the Agent, and must offer each Lender the opportunity to subscribe for its pro rata share of the increased Commitment. If the Borrower does not receive either telephonic or written notice from the Agent that all of the increased Commitment is subscribed for by the Lenders within fifteen (15) Business Days after the delivery of the Commitment Increase Notice, the Borrower may, in its sole discretion, but with the consent of the Agent (which shall as to any Person that is not be unreasonably withheld at such time a Lender, offer to any existing Lender or delayedto one or more additional banks or financial institutions the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments pursuant to Section 2.19(b) or Section 2.19(c), as applicable.
(b) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Commitments, and that elects to become a party to this Agreement with the Borrower and the Agent (a “New Lender”), by the execution of an agreement (a “New Lender Agreement”) substantially in the form of Exhibit 2.19(b), shall become a Lender for all purposes and to the same extent as if originally a party hereof and shall be bound by and entitled to the benefits of this Agreement. The Commitment of any such New Lender shall be in an amount not less than $10,000,000.
(c) Any Lender that accepts an offer by the Borrower to increase its Commitment pursuant to this Section 2.19 shall, in each case, execute an agreement whereby it agrees to be bound by, and accept the benefits of, this Agreement and the other Loan Documents (a “Commitment Increase Agreement”) substantially in the form of Exhibit 2.19(c), with the Borrower and the Agent. Upon delivery to the Agent of one or more Commitment Increase Agreements, the Agent shall enter such New Lender and its Commitment in the Register and distribute a new Schedule 2.1 reflecting the Commitment of such New Lender and the Commitments, as increased.
(d) The effectiveness of any Commitment Increase Agreement shall be contingent upon receipt by the Agent of such corporate resolutions of the Borrower and legal opinions of counsel to the Borrower as the Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Agent.
(e) Additional Loans made on or after the date that any bank or financial institution becomes a New Lender pursuant to Section 2.19(b) or any Lender’s Commitment is increased pursuant to Section 2.19(c), (the “Re-Allocation Date”) shall be made pro rata based on their respective Commitments in effect on or after such Re-Allocation Date (except to the extent that any such pro rata borrowings would result in any Lender making an aggregate principal amount of Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the last day of the Interest Period applicable thereto and the making of new Loans pro rata based on the respective Commitments in effect on and after such Re-Allocation Date. In the event that on any such Re-Allocation Date there is an unpaid principal amount of Loans, such Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to prepay any thereof in accordance with the applicable provisions of this Agreement), and interest on and repayments of such Loans will be paid thereon to the respective Lenders holding such Loans pro rata based on the respective principal amounts thereof outstanding.
(f) Notwithstanding anything to the contrary in this Section 2.19, (i) no Lender shall have the right any obligation to request an increase its Commitment unless it agrees to do so in the aggregate amount of the Commitments its sole discretion and (provided that the aggregate amount of such increases ii) after giving effect to any increase in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent2.19, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, shall not exceed $100,000,000.
(Ag) any Lender becoming a party hereto The Borrower shall execute such documents and agreements as the Agent may reasonably request deliver a Note or Notes to each New Lender and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives replacement Notes to Lenders signing a new or replacement Note, as appropriate, Commitment Increase Agreement in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of said Persons’ Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Asbury Automotive Group Inc)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the a) The Borrower shall have the right at any time after the Amendment and Restatement Effective Date to request that the aggregate Commitments hereunder be increased (a “Commitment Increase”) in accordance with the following provisions and subject to the following conditions:
(i) The Borrower shall give the Administrative Agent, which shall promptly deliver a copy thereof to each of the Lenders, at least ten (10) Business Days’ prior written notice (a “Notice of Increase”) of any such requested increase specifying the aggregate amount by which the Commitments are to be increased (the “Requested Increase Amount”), which shall be at least $10 million, the requested date of increase (the “Requested Increase Date”) and the date by which the Lenders wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective Credit Commitments (the “Commitment Date”). Each Lender that is willing in its sole discretion to participate in such requested Commitment Increase (each an “Increasing Lender”) shall give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment.
(ii) Promptly following each Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Lenders are willing to participate in the requested Commitment Increase. In addition, the Borrower may extend offers to one or more Eligible Assignees, each of which must be reasonably satisfactory to the Administrative Agent, (such consent not to be unreasonably withheld) to participate in any portion of the requested Commitment Increase; provided, however, that the Commitment of each such Eligible Assignee shall be in an amount of not less than $1 million or an integral multiple of $1 million in excess thereof. Any such Eligible Assignee that agrees to acquire a Commitment pursuant hereto is herein called an “Additional Lender”.
(iii) Effective on the Requested Increase Date, subject to the terms and conditions hereof, (x) the Commitment Schedule shall be deemed to be amended to reflect the increases contemplated hereby, (y) the Commitment of each Increasing Lender shall be increased by an amount determined by the Administrative Agent and the Borrower (but in no event greater than the amount by which such Lender is willing to increase its Commitment), and (z) each Additional Lender shall enter into an agreement in form and substance reasonably satisfactory to the Borrower and the Administrative Agent pursuant to which it shall undertake, as of such Requested Increase Date, a new Commitment in an amount determined by the Administrative Agent and the Borrower (but in no event greater than the amount by which such Lender is willing to participate in the requested Commitment Increase), and such Additional Lender shall thereupon be deemed to be a Lender for all purposes of this Agreement.
(iv) If on the Requested Increase Date there are any Loans outstanding hereunder, the Borrower shall borrow from all or certain of the Lenders and/or prepay Loans of all or certain of the Lenders such that, after giving effect thereto, the Loans (including, without limitation, the Types and Interest Periods thereof) and such participations shall be held by the Lenders (including for such purposes the Increasing Lenders and the Additional Lenders) ratably in accordance with their respective Commitments. On and after each Increase Date, the ratable share of each Lender’s participation in Letters of Credit and Loans from draws under Letters of Credit shall be calculated after giving effect to each such Commitment Increase.
(b) Anything in this Section 2.23 to the contrary notwithstanding, no increase in the aggregate Commitments hereunder pursuant to this Section 2.23 shall be effective unless:
(i) as of the date of the relevant Notice of Increase and on the relevant Requested Increase Date and after giving effect to such increase, (x) no Default or Event of Default shall have occurred and be continuing and (y) the condition set forth in Section 4.02(a) shall be required to be satisfied;
(ii) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates consistent with the documentation delivered on the Amendment and Restatement Effective Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) any reaffirmation or similar documentation as reasonably requested by the Administrative Agent in order to ensure that such Increasing Lender or Additional Lender is provided with the benefit of the applicable Loan Documents; and
(iii) after giving effect to any such increase after the Amendment and Restatement Effective Date, the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment600 million.
Appears in 1 contract
Increase of Commitments. Subject (a) If no Default, Event of Default or Material Adverse Change shall have occurred and be continuing at the time of delivery of the Commitment Increase Notice, the Borrower may at any time and from time to time request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $10,000,000, (ii) the cumulative increase in Commitments after the Effective Date pursuant to this Section 2.19 shall not exceed $200,000,000 without the approval of the Required Lenders, (iii) the Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Commitments shall not exceed $1,000,000,000 without the approval of the Required Lenders. The Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall so notify the Administrative Agent in writing no later than fifteen (15) days after receipt by the Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.19 shall, in each case, execute a Commitment Increase Agreement, in substantially the form attached hereto as Exhibit C, with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the Administrative Agent within such period that it will increase its Commitment shall be deemed to have rejected such offer to increase its Commitment. No Lender shall have any obligation whatsoever to agree to increase its Commitment. Any agreement to increase a Lender’s pro rata share of the increased Commitment shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments pursuant to paragraph (c) below by notifying the Administrative Agent. Promptly and in any event within five (5) Business Days after receipt of notice from the Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall have notify such proposed lenders of the right opportunity to request an increase participate in all or a portion of such unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Commitments shall execute and deliver to the Administrative Agent a New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit D, setting forth its Commitment, and upon the effectiveness of such New Lender Agreement, such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase the aggregate amount Commitments of the Commitments (Lenders by the Commitment of such New Lender, provided that the aggregate Commitment of any New Lender shall be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders.
(d) The effectiveness of any Commitment Increase Agreement or New Lender Agreement shall be contingent upon receipt by the Administrative Agent of corporate resolutions of the Borrower in form and substance reasonably satisfactory to the Administrative Agent. Once a Commitment Increase Agreement or New Lender Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such increases agreements by appropriate entries in the Register.
(e) Upon and after the effective date of any increase in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to 2.19 (the Agent“Re‑Allocation Date”), which notice additional Revolving Loans shall be irrevocable once given. Each made pro rata based on the respective Commitments of the Lenders in effect on or after such increase in the Commitments must Re-Allocation Date, and continuations of Loans outstanding on such Re-Allocation Date shall be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender effected by repayment of such request. Each existing Lender shall have Loans on the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval last day of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its CommitmentInterest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving LoansABR Loan, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or based on the respective Commitments in effect prior to the Re-Allocation Date, and the making of new Loans of the same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(yf) If on any representation or warranty made or deemed made by Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower or elects to prepay any other Obligor thereof in any Loan Document accordance with the applicable provisions of this Agreement), and interest on and repayments of such Eurodollar Loans will be paid thereon to which any the respective Lenders holding such Obligor is a party is not (or would not be) true or correct in all material respects Eurodollar Loans pro rata based on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
Appears in 1 contract
Increase of Commitments. (a) Subject to Section 2.17(b), the approval Borrower may increase the Aggregate Commitment then in effect by entering into an Incremental Commitment Agreement with one or more banks or financial institutions (each an “Incremental Lender”), pursuant to which each such Incremental Lender’s Revolving Loan Commitment shall be increased or, if such Incremental Lender was not a Lender prior to entering such Incremental Commitment Agreement, pursuant to which such Incremental Lender makes and is allocated a Revolving Loan Commitment.
(b) Any increase in the Aggregate Commitment pursuant to this Section 2.17 will be subject to the satisfaction of the following conditions:
(i) no Event of Default has occurred and is continuing;
(ii) the Borrower and each Incremental Lender shall have executed and delivered an Incremental Commitment Agreement and each Incremental Lender, if not already a Lender, shall have delivered to the Agent a completed administrative questionnaire;
(iii) the Agent shall have delivered its prior written consent, which consent shall not be unreasonably withheld withheld, to each such Incremental Lender, unless such Incremental Lender is already a Lender or delayed), an Affiliate of a Lender;
(iv) each such increase shall be at least $5,000,000;
(v) the Borrower shall have the right to request an cumulative increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Revolving Loan Commitments pursuant to this Section 2.19 shall not exceed $55,000,00050,000,000;
(vi) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender no event shall have the right occurred since December 31, 2009, with respect to increase Borrower and its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased Subsidiaries, taken as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time periodwhole, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreementthat has resulted, or if any existing Lender agrees could reasonably be expected to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitmentresult, in the case of an existing Lendera Material Adverse Change;
(vii) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase increase, no Eurodollar Loan shall be outstanding or (y) if any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on Eurodollar Loans are outstanding, then the effective date of such increase will be the last day of the Interest Period in respect of such Eurodollar Loans unless the Borrower pays compensation pursuant to Section 3.5;
(except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in viii) the aggregate amount of the Lenders’ Revolving Loan Commitments pursuant shall not exceed $175,000,000 without the approval of all Lenders; and
(ix) the Agent shall have received such corporate resolutions of the Borrower and legal opinions of counsel to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements the Borrower as the Agent may reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Agent.
(c) Upon the effectiveness of each Incremental Commitment Agreement executed by an Incremental Lender, (i) such Incremental Lender will become a Lender for all purposes and to the same extent as if originally a party hereto and will be bound by and entitled to the benefits of this Agreement, (ii) the Revolving Loan Commitments and Aggregate Commitment will be deemed to include the new or increased Revolving Loan Commitment of such Incremental Lender, and (Biii) such Incremental Lender shall purchase a pro rata portion of the Borrower shall make appropriate arrangements outstanding Loans (and participation interests in Letters of Credit) from each of the other Lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) so that each new Lender (including each Incremental Lender) holds its Percentage Share of the Revolving Facility Usage.
(d) Upon its receipt of a duly completed Incremental Commitment Agreement, executed by the Borrower and each Incremental Lender party thereto, and any existing Lender increasing its Commitmentthe administrative questionnaire referred to in Section 2.17(b)(ii), receives a new or replacement Noteand subject to the satisfaction of the other conditions of Section 2.17, as appropriate, the Agent shall accept such Incremental Commitment Agreement and record the information contained therein in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable Register. No increase in the aggregate amount Revolving Loan Commitments will be effective for purposes of Commitments. The Borrower this Agreement unless the relevant Incremental Commitment Agreement shall also execute and deliver have been delivered to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentAgent.
Appears in 1 contract
Increase of Commitments. Subject (a) At any time prior to the approval of Termination Date, the Agent Borrower may request (which in consultation with the Agent) that the Commitments be increased, provided, that (a) the Commitments shall at no time exceed $125,000,000; (b) the Borrower shall not previously have reduced the Commitments; and (c) the Borrower shall not be unreasonably withheld or delayed), entitled to make such request more than 2 times during the term of this Agreement. Such request shall be made in a written notice given to the Agent and the Banks by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall have specify the right to request an amount of the proposed increase in the Commitments and the proposed effective date of such increase. The proposed increase in the Commitments shall be in an amount (i) not more than $25,000,000 with respect to the aggregate amount of the Commitments (provided that the aggregate amount of all such increases in the Commitments pursuant to this Section shall and (ii) not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of less than $10,000,000 and integral multiples of $1,000,000 in excess thereofwith respect to any one such increase. The Agent shall promptly notify each Lender of such request. Each existing Lender No Bank shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within date that is ten (10) Business Days after receipt of the Agent's Commitment Increase Notice, each Bank shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Agent within being herein a “Bank Increase Notice”). Any Bank which does not submit a Bank Increase Notice to the Agent prior to the expiration of such time period, then such Lender ten (10) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders that the increases of Commitments set forth in the Bank Increase Notices exceed the amount requested by the Borrower in the Commitment Increase Notice, the Borrower shall have the right, in consultation with the Agent, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In the event that the Bank Increase Notices are less than the amount requested by the Borrower, not later than three (3) Business Days prior to the proposed effective date the Borrower may notify the Agent of any financial institution that shall have agreed to become a “Bank” party hereto (a “Proposed New Bank”) in connection with the Commitment Increase Notice. Any Proposed New Bank shall be subject to this Agreementthe consent of the Agent, or if which consent shall not be unreasonably withheld. If the Borrower shall not have arranged any existing Lender agrees Proposed New Bank(s) to increase its Commitment, such Lender shall on commit to the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase shortfall from the other Lenders Bank Increase Notices, then the Borrower shall be deemed to have reduced the amount of its Commitment Percentage (as determined after giving effect Increase Notice to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount set forth in the Bank Increase Notices. Based upon the Bank Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Bank, if applicable, the Agent shall notify the Borrower and the Banks on or before the Business Day immediately prior to the proposed effective date of payments previously made by the other Lenders under Sections 2.2(eamount of each Bank’s and Proposed New Banks’ Commitment (the “Effective Commitment Amount”) or 2.4(jand the amount of the Commitments, which amount shall be effective on the following Business Day. Any increase in the Commitments shall be subject to the following conditions precedent: (i) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as have obtained the consent thereto of such date on such portion any guarantor of the outstanding principal amount Obligations and its reaffirmation of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payableCredit Document(s), if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default executed by it, which consent and reaffirmation shall be in existence on writing and in form and substance reasonably satisfactory to the Agent, (ii) as of the date of the Commitment Increase Notice and as of the proposed effective date of such the increase or (y) any representation or warranty made or deemed made by in the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) Commitments, all representations and warranties shall be true or and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or an Event of Default, (iii) the effective date Borrower, the Agent and each Proposed New Bank or Bank that shall have agreed to provide a Commitment in support of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount Commitments shall have executed and delivered a Commitment and Acceptance (“Commitment and Acceptance”) substantially in the form of the Commitments pursuant to this subsectionExhibit F hereto, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (Biv) the Borrower and the Proposed New Bank shall make appropriate arrangements so otherwise have executed and delivered such other instruments and documents as may be required hereunder or that each new Lender, and the Agent shall have requested in connection with such increase. In the event any existing Lender increasing its Commitment, receives provision of a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days Acceptance shall be inconsistent with any provision of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.this Agreement, then this Agreement shall
Appears in 1 contract
Increase of Commitments. Subject (a) The Company may, by notice to the approval Citibank (in which case Citibank shall promptly deliver a copy to each of the Agent Lenders), request that the total Commitments be increased by an amount that will equal or exceed $20,000,000, but that will not result in the total Commitments exceeding $500,000,000. Each such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 20 days or more than 45 days after the date of such notice (or such shorter time as may be unreasonably withheld or delayedagreed upon by the Company and Citibank)), the Borrower and shall have the right to request an increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify offer each Lender of such request. Each existing Lender shall have the right opportunity to increase its Commitment by an amount so that such Lender's Commitment its Applicable Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agentproposed increased amount. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such shall, by notice to the Agent Company and Citibank given not more than 20 days after the date of the Company's notice (or such shorter time as may be agreed upon by the Company and Citibank), either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender") or decline to increase its Commitment (and any Lender that does not deliver such a notice within such period of 20 days (or such shorter time period, then such Lender as may be agreed upon by the Company and Citibank) shall be deemed to have declined to increase its Commitment. No ) (each Lender shall be required so declining or deemed to increase its Commitment and any new Lender(s) becoming have declined being a party to this Agreement in connection with any such requested increase must be an Eligible Assignee"Non-increasing Lender"). In the event that, on the 20th day (or such shorter time as may be agreed upon by the Company and Citibank) after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, Citibank or the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution as referred to in this clause (a)being called an "Augmenting Lender"), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount, provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Company and Citibank (which approvals shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as Citibank shall reasonably specify to evidence its Commitment and its status as a Lender hereunder. Increases and new Lender or Lenders become a party Commitments created pursuant to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender clause (a) shall become effective on the date it becomes a Lender hereunder specified in the notice delivered by the Company pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or increases its Commitment, in the case Commitment of an existing any Lender) shall become effective under this paragraph unless, (i) on the date of such increase, the conditions set forth in paragraphs (a)and (b) of Section 4.2 shall be satisfied (with all references in such paragraphs to a Borrowing being deemed to be references to such increase) and as Citibank shall have received a condition theretocertificate to that effect dated such date and executed by a Financial Officer of the Company and (ii) purchase to the extent requested from the other Lenders its Commitment Percentage Company, Citibank shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.1 as determined to the corporate power and authority of the Company to borrow hereunder after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentincrease.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)
Increase of Commitments. Subject At any time, but not more than five (5) times during the term of this Agreement, the Borrower may request that the aggregate of the Commitments (the “Aggregate Commitment”) be increased by increasing the Revolving Commitments and/or obtaining incremental Term Loans hereunder; provided that (i) the Aggregate Commitment shall at no time exceed $175,000,000 and (ii) each such request shall be in a minimum amount of $5,000,000. Any such incremental Term Loans (A) shall rank pari passu in right of payment and of security with the Revolving Loans and all other Term Loans, (B) shall not mature earlier than the Maturity Date, (C) shall not have a weighted average life that is shorter than the then-remaining weighted average life of the initial Term Loans, and (D) shall be otherwise treated substantially the same as (and in any event no more favorably than) the other Term Loans (in each case, including with respect to pricing and mandatory and voluntary prepayments). Each such request shall be made in a written notice given to the approval Administrative Agent and the Lenders by the Borrower not less than ten (10) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment, whether such increase is to be allocated to the Revolving Commitments and/or incremental Term Loans and the proposed effective date of such increase. The Borrower may notify the Administrative Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice and any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not be unreasonably withheld or delayed). The Administrative Agent shall notify the Borrower, the Borrower Lenders and any Proposed New Lender on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lender’s Revolving Commitment and/or incremental Term Loan commitment (collectively, the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amount shall have be effective on the right to request an following Business Day. Any increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Aggregate Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval following conditions precedent: (A) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties under Article III shall be true and correct in all material respects as though made on such date (except to the extent that any such representation or warranty relates solely to any earlier date, in which case it should have been true and correct in all material respects as of such earlier date) and no event shall have occurred and then be continuing which constitutes a Default, (B) the Borrower, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Revolving Commitment” or incremental Term Loans in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit C, (C) counsel for the Borrower shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent. Each , (D) the Borrower and each Proposed New Lender shall notify otherwise have executed and delivered such other instruments and documents that the Administrative Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement reasonably requested in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder and (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (aE) the portion Administrative Agent shall have administered the reallocation of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Credit Exposures on the effective date of such increase or ratably among the Lenders (yincluding new Lenders) after giving effect to such increase. The Borrower hereby agrees to compensate each Lender for all losses, expenses and liabilities incurred by such Lender in connection with the sale and assignment of any representation or warranty made or deemed made by Eurodollar Loan hereunder on the terms and in the manner as set forth in Section 2.16 hereof. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on and each Lender of the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date)increase. In connection with Upon the effective date of any increase in the aggregate amount of the Commitments pursuant Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this subsectionAgreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, (A) or otherwise be deemed to be, a commitment on the part of any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and to increase its Revolving Commitment or provide incremental Term Loans at any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmenttime.
Appears in 1 contract
Sources: Credit Agreement (Myr Group Inc)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the a) The Borrower shall have the right at any time after the Closing Date to request an increase the aggregate Commitments hereunder in accordance with the following provisions and subject to the following conditions:
(i) The Borrower shall give the Administrative Agent, which shall promptly deliver a copy thereof to each of the Lenders, at least 20 Business Days’ prior written notice (a “Notice of Increase”) of any such requested increase specifying the aggregate amount of by which the Commitments are to be increased (provided that the aggregate amount “Requested Increase Amount”), which shall be at least $10,000,000, and the requested date of such increases in increase (the Commitments pursuant to this Section “Requested Increase Date”). Each Lender shall not exceed $55,000,000) have the right, but no obligation whatsoever, by providing written notice to the AgentBorrower through the Administrative Agent not less than 10 Business Days after the date of said Notice of Increase, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to offer to increase its Commitment by an amount so that specified by such Lender's Commitment Percentage , which shall not be decreased as a result of such requested increase in less than $1,000,000 and shall not exceed the CommitmentsRequested Increase Amount. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Any Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes that so offers to increase the amount of its CommitmentCommitment is herein called an “Increasing Lender”. If a Any Lender fails to deliver any such notice to the Agent that does not so offer within such time period, then such Lender shall be deemed to have declined to increase its Commitment.
(ii) If the aggregate amount of the increases offered pursuant to sub-clause (i) above exceeds the Requested Increase Amount, the increase shall be allocated ratably among the Increasing Lenders.
(iii) If the aggregate amount of the increases offered pursuant to sub-clause (i) above is less than the Requested Increase Amount, the Borrower may, through the Administrative Agent, offer the balance of the Requested Increase Amount to one or more other financial institutions, each of which must be reasonably satisfactory to the Administrative Agent; provided, that the Commitment to be acquired hereunder by any such other financial institution shall not be less than $1,000,000. No Any such other financial institution that agrees to acquire a Commitment pursuant hereto is herein called an “Additional Lender”.
(iv) Effective on the Requested Increase Date, subject to the terms and conditions hereof, (x) Schedule I shall be deemed amended to reflect the increases contemplated hereby, (y) the Commitment of each Increasing Lender shall be required increased by the amount determined pursuant to sub-clauses (i) and (ii) above, and (z) each Additional Lender shall enter into an agreement in form and substance satisfactory to the Borrower and the Administrative Agent pursuant to which it shall undertake, as of such Requested Increase Date, a new Commitment in the amount determined pursuant to sub-clause (iii) above, and such Additional Lender shall thereupon be deemed to be a Lender for all purposes of this Agreement. Each Additional Lender may request a Note in accordance with Section 2.17(d).
(v) If on the Requested Increase Date there are Advances outstanding hereunder, appropriate adjustments shall be made (by the making of Advances by the Increasing Lenders and the Additional Lenders and/or the prepayment of outstanding Advances) as necessary to cause the outstanding Advances to be held ratably by all Lenders.
(vi) The Borrower may not exercise its rights under this Section 2.19 more than once in each successive annual period commencing on the Closing Date.
(b) Anything in this Section 2.19 to the contrary notwithstanding, no increase its Commitment and any new Lender(s) becoming a party in the aggregate Commitments hereunder pursuant to this Agreement in connection with any such requested increase must Section shall be an Eligible Assignee. In effective unless:
(i) as of the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall date of the relevant Notice of Increase and on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (relevant Requested Increase Date and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loanssuch increase, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a no Default or Event of Default shall have occurred and be in existence on the effective date of such increase or continuing and (y) any representation or warranty made or deemed made by the representations and warranties of the Borrower or any other Obligor in any Loan Document Article 4 (subject to which any such Obligor is a party is not (or would not beupdating in the case of Sections 4.01(n) and 4.01(o)) shall be true or and correct in all material respects as if made on the effective date and as of such increase date (except for representations or warranties which unless expressly stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). In connection with ;
(ii) on and as of the date of the relevant Notice of Increase and on the relevant Requested Increase Date and after giving effect to such increase, the ▇▇▇▇▇’▇ Rating and the S&P Rating shall be at least equal to Baa3 and BBB- respectively;
(iii) the Borrower shall not previously have reduced the Commitments under Section 2.04; and
(iv) after giving effect to any such increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentnot exceed $150,000,000.
Appears in 1 contract
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Increase of Commitments. Subject (a) The Company may, by notice to the approval Citibank (in which case Citibank shall promptly deliver a copy to each of the Agent Lenders), request that the total Commitments be increased by an amount that will equal or exceed $20,000,000, but that will not result in the total Commitments exceeding $500,000,000. Each such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 20 days or more than 45 days after the date of such notice (or such shorter time as may be unreasonably withheld or delayedagreed upon by the Company and Citibank)), the Borrower and shall have the right to request an increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify offer each Lender of such request. Each existing Lender shall have the right opportunity to increase its Commitment by an amount so that such Lender's Commitment its Applicable Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agentproposed increased amount. Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such shall, by notice to the Agent Company and Citibank given not more than 20 days after the date of the Company's notice (or such shorter time as may be agreed upon by the Company and Citibank), either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an "Increasing Lender") or decline to increase its Commitment (and any Lender that does not deliver such a notice within such period of 20 days (or such shorter time period, then such Lender as may be agreed upon by the Company and Citibank) shall be deemed to have declined to increase its Commitment. No ) (each Lender shall be required so declining or deemed to increase its Commitment and any new Lender(s) becoming have declined being a party to this Agreement in connection with any such requested increase must be an Eligible Assignee"Non-increasing Lender"). In the event that, on the 20th day (or such shorter time as may be agreed upon by the Company and Citibank) after the Company shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Company, Citibank or the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution as referred to in this clause (a) being called an "Augmenting Lender"), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount, provided that each Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the Company and Citibank (which approvals shall not be unreasonably withheld) and each Augmenting Lender shall execute all such documentation as Citibank shall reasonably specify to evidence its Commitment and its status as a Lender hereunder. Increases and new Lender or Lenders become a party Commitments created pursuant to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender clause (a) shall become effective on the date it becomes a Lender hereunder specified in the notice delivered by the Company pursuant to the first sentence of this paragraph. Notwithstanding the foregoing, no increase in the total Commitments (or increases its Commitment, in the case Commitment of an existing any Lender) shall become effective under this paragraph unless, (i) on the date of such increase, the conditions set forth in paragraphs (a) and as (b) of Section 4.2 shall be satisfied (with all references in such paragraphs to a condition theretoBorrowing being deemed to be references to such increase) purchase and Citibank shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Company and (ii) to the extent requested from the other Lenders its Company, Citibank shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Effective Date under clauses (b) and (c) of Section 4.1 as to the corporate power and authority of the Company to borrow hereunder after giving effect to such increase.
(b) On the effective date (the "Increase Effective Date") of any increase in the total Commitments pursuant to Section 2.6(a) (the "Commitment Increase"), (i) the aggregate principal amount of the Loans outstanding (the "Initial Loans") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Lender shall pay to Citibank in same day funds an amount equal to the difference between (A) the product of (1) such Increasing Lender's Applicable Percentage (as determined calculated after giving effect to the increase Commitment Increase) multiplied by (2) the amount of Commitmentsthe Subsequent Borrowings (as hereinafter defined) and (B) the product of any outstanding Revolving (1) such Increasing Lender's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the Initial Loans, by making available (iii) each Augmenting Lender shall pay to the Agent for the account of such other Lenders at the Principal Office, Citibank in same day funds, funds an amount equal to the sum product of (a1) such Augmenting Lender's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after Citibank receives the funds specified in clauses (ii) and (iii) above, Citibank shall pay to each Non-increasing Lender the portion of such funds that is equal to the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus difference between (bA) the aggregate amount product of payments previously made by the other Lenders under Sections 2.2(e(1) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Non-increasing Lender's Applicable Percentage (calculated without giving effect to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of Commitment Increase) multiplied by (2) the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsectionInitial Loans, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new product of (1) such Non-increasing Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in 's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of such Lender's Commitment and a Competitive Advance Note within two the Subsequent Borrowings, (2v) Business Days of after the effectiveness of the applicable increase Commitment Increase, the Company shall be deemed to have made new Borrowings (the "Subsequent Borrowings") in an aggregate principal amount equal to the aggregate principal amount of Commitmentsthe Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to Citibank in accordance with Section 2.3, (vi) each Non-increasing Lender, each Increasing Lender and each Augmenting Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment Increase) and (vii) the Company shall pay each Increasing Lender and each Non-increasing Lender any and all accrued but unpaid interest on the Initial Loans. The Borrower deemed payments made pursuant to clause (i) above in respect of each Eurocurrency Loan shall also be subject to indemnification by the Company pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto. If requested by a Lender, the Company, at its own expense, shall execute and deliver to Citibank on behalf of each Increasing Lender and each Augmenting Lender a promissory note complying with the other Lenders replacement Competitive Advance Notes increasing provisions of Section 2.10(e) hereof, in a principal amount equal to the principal face amount thereof Commitment of such Lender hereunder after giving effect to 30% the Commitment Increase. Each Increasing Lender shall promptly surrender to Citibank any previous promissory note held by it, for return to the Company and shall indemnify the Company for any claims, losses, damages or expenses (including reasonable fees and disbursements of counsel) arising out of its failure to surrender such promissory note, provided the new Total CommitmentCompany does not (unless pursuant to a final judgment of a court of competent jurisdiction) make any payments in respect of such promissory note.
Appears in 1 contract
Sources: Credit Facility Agreement (Bristol Myers Squibb Co)
Increase of Commitments. Subject to the approval (a) If no Default or Event of the Agent (which Default shall not have occurred and be unreasonably withheld or delayed)continuing, the Borrower shall have may at any time from time to time prior to the right Revolving Termination Date request one or more increases of the Revolving Commitments by notice to request an the Administrative Agent in writing of the amount of such proposed increase in (each such notice, a “Commitment Increase Notice”); provided, however, that, the aggregate amount of the Revolving Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section as so increased shall not exceed $55,000,000) by providing written notice 75,000,000. Any such Commitment Increase Notice delivered with respect to the Agent, which notice shall be irrevocable once given. Each such any proposed increase in the Revolving Commitments must be may offer one or more Revolving Lenders an aggregate minimum amount opportunity to subscribe for its Applicable Percentage (with respect to the existing Revolving Commitments (prior to such increase)) of $10,000,000 and integral multiples of $1,000,000 in excess thereofthe increased Revolving Commitments. The Administrative Agent shall promptly shall, within five (5) Business Days after receipt of a Commitment Increase Notice, notify each Lender of such request. Each existing Lender shall have the right desiring to increase its Revolving Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Administrative Agent within in writing no later than ten (10) Business Days after receipt of notice from the Administrative Agent's notice whether such . Any Lender wishes to increase that does not notify the amount of its Commitment. If a Lender fails to deliver any such notice to the Administrative Agent within such the time period, then such Lender shall period specified above that it will increase its Revolving Commitment will be deemed to have declined rejected such offer. Any agreement by a Lender to increase its Commitment. No Lender Revolving Commitment shall be required irrevocable.
(b) If any proposed increase in the Revolving Commitments is not fully subscribed by the existing Lenders pursuant to increase the procedure outlined in Section 2.18(a) preceding, the Borrower may, in its Commitment and any new Lender(s) becoming a party sole discretion, offer to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees or to increase its Commitment, such Lender shall on one or more additional banks or financial institutions the date it becomes opportunity to participate in all or a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account portion of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the unsubscribed portion of the outstanding principal amount increased Revolving Commitments, by notifying the Administrative Agent. Promptly and in any event within five (5) Business Days after receipt of notice from the Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders or to the additional banks or financial institutions identified therein, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such unsubscribed portion of the outstanding principal amount of such increased Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either Commitments.
(xc) a Default Any additional bank or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to financial institution which any such Obligor is a party is not (or would not be) true or correct in all material respects on an existing Lender and which accepts the effective date of such increase (except for representations or warranties which expressly relate solely Borrower’s offer to an earlier date). In connection with any increase participate in the aggregate amount of the increased Revolving Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing Administrative Agent and the principal face amount Borrower a new lender assumption agreement (in form and substance satisfactory to the Administrative Agent and the Required Lenders) (a “New Lender Agreement”) setting forth its Revolving Commitment (subject to the limitations on the amounts thereof set forth herein), and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Revolving Lender for all purposes and to 30% the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the new Total Commitmentsignature pages hereof shall be deemed to be amended to add the name of such New Lender. Upon any increase in the Revolving Commitments pursuant to this Section 2.18, the Commitment Schedule shall be deemed amended to reflect the Revolving Commitment of each Lender (including any New Lender) as thereby increased.
Appears in 1 contract
Sources: Credit Agreement (Perficient Inc)
Increase of Commitments. Subject (i) If no Default or Event of Default shall have occurred and be continuing, upon written notice to Administrative Agent (each such notice, a “Commitment Increase Notice”), Borrower may from time to time prior to the approval of the Agent (which shall not be unreasonably withheld or delayed)Maturity Date, the Borrower shall have the right to request an increase of the Aggregate Commitments (but not the L/C Sublimit) by an amount (for all such requests) not exceeding One Hundred Million Dollars ($100,000,000); provided that, (i) any such request for an increase shall be in the aggregate a minimum amount of the Commitments Twenty Five Million Dollars (provided that the aggregate amount $25,000,000); and (ii) Borrower may make a maximum of two (2) such increases in the Commitments pursuant requests. Any such Commitment Increase Notice delivered with respect to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such any proposed increase in the Commitments must be Commitment may offer one or more Lenders an aggregate minimum amount opportunity to subscribe for its Applicable Percentage (with respect to the existing Commitment (prior to such increase)) of $10,000,000 and integral multiples of $1,000,000 in excess thereofthe increased Aggregate Commitments. The Administrative Agent shall promptly promptly, and in any event within five (5) Business Days after receipt of a Commitment Increase Notice, notify each Lender of such request. Each existing Lender shall have the right desiring to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Administrative Agent within in writing no later than ten (10) Business Days after receipt of notice from Administrative Agent. Any Lender that does not notify Administrative Agent within the Agent's notice whether time period specified above that it will, in its sole discretion, increase its Commitment will be deemed to have rejected such offer. Any agreement by a Lender wishes to increase its Commitment shall be irrevocable.
(ii) If any proposed increase in the amount Commitment is not fully subscribed by the existing Lenders pursuant to the procedure outlined in Section 2.06(b)(i), Borrower may, in its sole discretion, offer to any existing Lender or to one or more additional banks or financial institutions which is an Eligible Assignee (each, a “New Lender”) the opportunity to participate in all or a portion of such unsubscribed portion of the increased Aggregate Commitments, by notifying WEST\258439317.6 319678-00008951 Administrative Agent in writing. Promptly and in any event within five (5) Business Days after receipt of notice from Borrower of its Commitment. If desire to offer such unsubscribed commitments to certain existing Lenders or to any New Lender identified therein, Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Aggregate Commitments.
(iii) Any New Lender which accepts Borrower’s offer to participate in the increased Commitment shall execute and deliver to Administrative Agent and Borrower a New Lender Addendum, an Administrative Questionnaire and such other documents, instruments and agreements as Administrative Agent may reasonably request, and upon the receipt thereof and the effectiveness of such New Lender Addendum such New Lender shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender.
(iv) If the Aggregate Commitments are increased in accordance with this Section, Administrative Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase its Commitment. No Lender and the Increase Effective Date.
(v) As a condition precedent to such increase, Borrower shall be required deliver to increase its Commitment Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and any new Lender(sattaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (Borrower, certifying that, before and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loanssuch increase, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by representations and warranties contained in Article VI and the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Loan Documents are true and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on and as of the effective date of Increase Effective Date, except that (x) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such increase representation and warranty shall be required to be true and correct in all respects, (except for y) to the extent that such representations or and warranties which expressly relate solely specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (z) for purposes of this Section 2.06, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.01, and (B) no Default exists. In connection Borrower shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
(vi) On each Increase Effective Date, subject to the satisfaction of the terms and conditions set forth in this Section, (A) each of the existing Lenders WEST\258439317.6 319678-00008952 shall assign to each of the New Lenders, and each of the New Lenders shall purchase from each of the existing Lenders, as applicable, at the principal amount thereof (together with accrued interest), such interests in the Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans will be held by existing Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such new Commitments to the total Aggregate Commitments hereunder, (B) each new Commitment shall be deemed for all purposes a “Commitment” and each Loan made thereunder shall be deemed, for all purposes, a “Loan”, (C) each New Lender shall become a “Lender” with respect to the new Commitment and all matters relating thereto and (D) and Borrower shall compensate each Lender who shall have assigned any portion of any Eurodollar Rate Loans previously held by such Lender compensation in the amount that would have been payable to such Lender under Section 3.05 hereof had Borrower made a prepayment of such Eurodollar Rate Loans by an amount equal to such assigned portion thereof. Upon any increase in the aggregate amount of the Commitments Commitment pursuant to this subsectionSection 2.06, Schedule 2.01 shall be deemed amended to reflect such new Commitment and the Applicable Percentage of each Lender (A) including any Lender becoming a party hereto shall execute such documents and agreements New Lender), as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new thereby increased or replacement Notedecreased, as appropriate, .
(vii) This Section shall supersede any provisions in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver Section 2.13 or 11.01 to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Increase of Commitments. Subject (a) The Borrower may, at any ----------------------- time but in any event not more than one time during any period of six consecutive calendar months, make a written request (an "Increase Request") to the approval of ---------------- the Agent (who shall forward a copy to each Lender) that the Commitments of the Lenders be increased by an aggregate amount, together with the aggregate amount by which shall the Commitments of the Lenders were previously increased pursuant to this Section 2.17, not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase exceed $50,000,000 in excess of the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agentdate of this Agreement. Each Lender Such Increase Request shall notify the Agent within ten (10) Business Days after receipt include a certification by a senior officer of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a that no Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor has occurred and is a party is not (or would not be) continuing and all representations and warranties contained herein are true or and correct in all material respects on and as of the date of the Increase Request (it being understood and agreed that any representation or warranty which expressly refers by its terms to a specified date shall be required to be true and correct in all material respects only as of such date). Any such increase in Commitments shall be effective as of a date (the "Increase Date") specified in the related ------------- Increase Notice that is (i) prior to the Commitment Termination Date and (ii) at least 10 days after the date of such Increase Notice. Each Increase Notice shall specify the date by which Lenders who wish to increase their Commitment must consent to such increase (except for representations the "Commitment ---------- Date"), which date shall be no later than five Business Days prior to the ---- related Increase Date. Each Lender that is willing to increase its Commitment (each an "Increasing Lender"), shall notify the Agent on or warranties prior to the ----------------- Commitment Date of the amount by which expressly relate solely it is willing to increase its Commitment, which amount shall not exceed the respective amount specified in the relevant Increase Notice. No Lender shall be obligated to increase its Commitment pursuant to this Section 2.17 and any such increase shall be in the sole discretion of each Lender. If the Lenders notify the Agent that they are willing to increase the amount of their respective Commitments by an earlier date)aggregate amount that exceeds the amount of the requested increase, the requested increase shall be allocated among the Lenders willing to participate therein ratably in accordance with the amount by which they offered to increase their respective Commitments on the Commitment Date.
(b) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the amount, if any, by which the Lenders are willing to participate in the requested increase. In connection with any increase in If the aggregate amount by which the Lenders are willing to increase their Commitments on any such Commitment Date is less than the requested amount, then any one or more Eligible Transferees designated by the Borrower that agree to provide Commitments for the shortfall may become party to this Agreement by executing and delivering a counterpart of this Agreement.
(c) On each Increase Date, each Eligible Transferee that accepts an offer to participate in a requested Commitment increase in accordance with Section 2.17(b) shall become a Lender party to this Agreement as of such Increase Date and the Commitments Commitment of each Increasing Lender shall be increased as of such Increase Date by the amount set forth in its notice delivered to the Agent in accordance with Section 2.17(a) (or by the amount allocated to such Lender pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount last sentence of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 2.17(a)).
Appears in 1 contract
Sources: Revolving Credit Agreement (Ambac Financial Group Inc)
Increase of Commitments. Subject (a) So long as, after giving pro forma effect to any such increase, (x) no Default or Event of Default has occurred and is continuing on the date thereof and (y) the Borrower is in compliance with the covenants set forth in Sections 6.16 and Section 6.17 (assuming for purposes of this Section 2.18(a) that the Commitments, including any proposed increase in Tranche B Commitments, are fully drawn) (as evidenced by a certificate of a Financial Officer delivered to the Administrative Agent on the date the Borrower submits a Commitment Increase Notice), the Borrower may at any time and from time to time request an increase of the aggregate Tranche B Commitments by notice under Section 2.18(a) or (b) to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $25,000,000, (ii) the cumulative increase in Tranche B Commitments pursuant to this Section 2.18 shall not exceed $50,000,000, (iii) the Tranche B Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Commitments shall not exceed (w) if such increase occurs prior to December 31, 2016, $300,000,000, (x) if such increase occurs on or after December 31, 2016the Second Amendment Closing Date and prior to June 30,December 31, 2017, $250,000,000,225,000,000, (y) if such increase occurs on or after June 30,December 31, 2017 and prior to December 31, 2017, $225,000,0002018, $200,000,000 or (z) if such increase occurs on or after December 31, 2017, $200,000,000,2018, $150,000,000, in each case, without the approval of the Required Lenders. If the Borrower elects to increase the aggregate Tranche B Commitments by increasing the Tranche B Commitment of a Lender, the Borrower, the Administrative Agent and such Lender shall execute an agreement (a “Commitment Increase Agreement”), in substantially the form attached hereto as Exhibit B, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Tranche B Commitment as so increased, and the definition of “Tranche B Commitment” in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. No Lender shall have any obligation whatsoever to agree to increase its Commitment. Each Commitment Increase Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) The Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of the Commitments (provided that the aggregate amount of such increases in the increased Tranche B Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once givenAdministrative Agent with a Commitment Increase Notice. Each such increase Promptly and in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent any event within ten five (105) Business Days after receipt of a Commitment Increase Notice from the Agent's notice whether such Lender wishes to increase the amount Borrower of its desire to offer to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of the increased Tranche B Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Tranche B Commitments shall execute and deliver to the Administrative Agent a New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit C, setting forth its Tranche B Commitment. If , and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender and the definition of “Tranche B Commitment” in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase its Commitment. No the aggregate Tranche B Commitments of the Tranche B Revolving Lenders by the Tranche B Commitment of such New Lender, provided that the Tranche B Commitment of any New Lender shall be required an amount not less than $5,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Tranche B Commitments effected by such agreements by appropriate entries in the Register.
(e) If any bank or financial institution becomes a New Lender pursuant to Section 2.18(c) or any Tranche B Revolving Lender’s Tranche B Commitment is increased pursuant to Section 2.18(a), additional Revolving Loans made on or after, participations in Letters of Credit issued on or after, and any new Lender(sparticipations in Swingline Loans made on or after, the effectiveness thereof (the “Re-Allocation Date”) becoming a party shall be made pro rata based on their respective Commitments in effect on or after such Re-Allocation Date (except to this Agreement in connection with the extent that any such requested increase must be an Eligible Assignee. In pro rata Loans or participations in Letters of Credit or Swingline Loans, as the event a new case may be, would result in any Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase exceeding its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)a) At any time, the Parent Borrower shall have may request that the right to request an increase in the aggregate amount of the Commitments (Aggregate Revolving Loan Commitment be increased or incremental term loans be extended; provided that (i) the aggregate amount of such increases and such incremental term loans shall at no time exceed $200,000,000; (ii) the Parent Borrower shall not make any such request during the six month period following any reduction in the Commitments Aggregate Revolving Loan Commitment previously made pursuant to this Section 2.7; (iii) the Parent Borrower shall not exceed $55,000,000be entitled to make any such request more frequently than once in each 12-month period; and (iv) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 20,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Agent shall promptly notify each Lender and the applicable Lenders by the Parent Borrower not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease or incremental term loan extension, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase or extension and the proposed effective date of such increase or extension. Each existing No Lender shall have the right any obligation to increase its Revolving Loan Commitment by an amount so that or commit to such Lender's extension pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within date that is ten (10) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails Revolving Loan Commitment or commit to deliver such extension in connection with such Commitment Increase Notice (any such notice to the Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such time period, then such Lender ten (10) Business Day period shall be deemed to have declined denied any such increase or extension. In the event that the increases or extensions set forth in the Lender Increase Notices exceed the amount requested by the Parent Borrower in the Commitment Increase Notice, the Agent and the Arranger shall have the right, in consultation with the Parent Borrower, to increase its Commitmentallocate the amount of increases or extensions necessary to meet the Parent Borrower’s Commitment Increase Notice. No In the event that the Lender Increase Notices are less than the amount requested by the Parent Borrower, the Agent shall so advise the Parent Borrower not later than ten (10) Business Days prior to the proposed effective date, and not later than three (3) Business Days prior to the proposed effective date the Parent Borrower may notify the Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed New Lender shall be required consented to increase by the Agent (which consent shall not be unreasonably withheld). If the Parent Borrower shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Parent Borrower shall be deemed to have reduced the amount of its Commitment Increase Notice to the aggregate amount set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made in connection therewith and any new Lender(snotice regarding any Proposed New Lender, if applicable, the Agent shall notify the Parent Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Revolving Loan Commitment and/or incremental term loan commitment amount (the “Effective Commitment Amount”) becoming a and the amount of the Aggregate Revolving Loan Commitment and aggregate incremental term loan commitment amount, which amount shall be effective on the following Business Day. No consent of any Lender (other than the Lenders participating in any increase in the Aggregate Revolving Loan Commitment or extension of incremental term loans) shall be required for any increase in the Aggregate Revolving Loan Commitment or extension of incremental term loans pursuant to this Section 2.27. Any increase in the Aggregate Revolving Loan Commitment or extension of incremental term loans shall be subject to the following conditions precedent: (A) the Parent Borrower shall have obtained the consent thereto of each Subsidiary party to this Agreement the Subsidiary Guaranty (each, a “Guarantor”) and its reaffirmation of the Credit Document(s) executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Agent, (B) as of the date of the Commitment Increase Notice and as of the proposed effective date of such increase or extension, all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (C) the Parent Borrower, the Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Revolving Loan Commitment” in support of such increase in the Aggregate Revolving Loan Commitment or to provide an incremental term loan commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit J hereto, (D) counsel for the Parent Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (E) the Parent Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase or extension. If any fee shall be charged by the applicable Lenders in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitmentextension, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default fee shall be in existence on accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Parent Borrower. Upon satisfaction of the conditions precedent to any increase in the Aggregate Revolving Loan Commitment or extension of incremental term loans, the Agent shall promptly advise the Parent Borrower and each Lender of the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on extension. Upon the effective date of any such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant extension that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this subsectionAgreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, (A) or otherwise be deemed to be, a commitment on the part of any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and to increase its Revolving Loan Commitment or provide an incremental term loan commitment at any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmenttime.
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Increase of Commitments. Subject (a) If, prior to and after giving effect to any increase in the Commitments pursuant to this Section 2.20, no Default, Event of Default or Material Adverse Effect shall have occurred and be continuing, the Borrower may at any time and from time to time, but in no event more than two (2) times in any fiscal year, request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $25,000,000, (ii) the cumulative increase in Commitments pursuant to this Section 2.20 shall not exceed $150,000,000, (iii) the Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Commitments shall not exceed $450,000,000 without the approval of the Required Lenders. The Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall so notify the Administrative Agent in writing no later than twenty (20) days after receipt by the Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall, in each case, execute an agreement (a “Commitment Increase Agreement”), in substantially the form attached hereto as Exhibit B, with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the Administrative Agent within such period that it will increase its Commitment shall be deemed to have rejected such offer to increase its Commitment. No Lender shall have any obligation whatsoever to agree to increase its Commitment. Any agreement to increase a Lender’s pro rata share of the increased Commitment shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of such unsubscribed portion of the Commitments (provided that the aggregate amount of such increases in the increased Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Administrative Agent. Each Lender shall notify the Agent Promptly and in any event within ten five (105) Business Days after receipt of notice from the Agent's notice whether such Lender wishes to increase the amount Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Commitments shall execute and deliver to the Administrative Agent a New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit C, setting forth its Commitment. If , and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase its Commitment. No the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Commitment of any New Lender shall be required an amount not less than $5,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment and Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(e) If any new Lender(sbank or financial institution becomes a New Lender pursuant to Section 2.20(c) becoming a party or any Lender’s Commitment is increased pursuant to this Agreement Section 2.20(a), additional Revolving Loans made on or after the effectiveness thereof (the “Re-Allocation Date”) shall be made pro rata based on their respective Commitments in connection with effect on or after such Re-Allocation Date (except to the extent that any such requested increase must be pro rata borrowings would result in any Lender making an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase aggregate principal amount of Revolving Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
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Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed)i) At any time, the Borrower may request that the Aggregate Commitment be increased; provided that (a) the Aggregate Commitment shall have the right to request an increase in at no time exceed $400,000,000 minus the aggregate amount of all reductions in the Commitments Aggregate Commitment previously made pursuant to Section 2.6(A), (provided that the aggregate b) each such request shall be in a minimum amount of such increases at least $10,000,000 and increments of $5,000,000 in excess thereof and (c) the Commitments Aggregate Commitment may not be increased more than twice pursuant to this Section 2.6. Such request shall not exceed $55,000,000) by providing be made in a written notice given to the AgentAgent and the Lenders by the Borrower not less than ten (10) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall be irrevocable once given. Each such specify the amount of the proposed increase in the Commitments must be an aggregate minimum amount of $10,000,000 Aggregate Commitment and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender the proposed effective date of such requestincrease. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is five (105) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender and Proposed New Lender (as defined below) shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If existing Commitment or provide a Lender fails to deliver new Commitment in connection with such Commitment Increase Notice (any such notice to the Agent within being herein a “Lender Increase Notice”). Any Lender which does not submit a Lender Increase Notice to the Agent prior to the expiration of such time period, then such Lender five (5) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No The Agent and the Arranger shall have the right, with the consent of the Borrower, to allocate the amount of increases necessary to meet the Borrower’s Commitment Increase Notice. In addition, not later than the date the Commitment Increase Notice is delivered by the Borrower, the Borrower may notify the Agent of any financial institution that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”; provided that no Ineligible Institution may be a Proposed New Lender) in connection with the Commitment Increase Notice and the portion of the proposed increase proposed to be allocated to such financial institution. Any Proposed New Lender shall be required subject to the consent of the Agent and, provided that JPMorgan is at such time the Principal Issuing Lender, JPMorgan in its capacity as such (which consent shall not be unreasonably withheld). Based upon the Lender Increase Notices, any allocations made in connection therewith and any notice regarding any Proposed New Lender, if applicable, the Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts shall be effective on the following Business Day. Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (A) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment all representations and warranties shall be true and correct in all material respects as though made on such date and no event shall have occurred and then be continuing which constitutes a Default or Unmatured Default, (B) the Borrower, the Agent, provided that JPMorgan is at such time the Principal Issuing Lender, JPMorgan in its capacity as such, and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such increase in the Aggregate Commitment shall have executed and delivered a Commitment and Acceptance substantially in the form of Exhibit D hereto (a “Commitment and Acceptance”), (C) counsel for the Borrower and for the Guarantors shall have provided to the Agent supplemental opinions in form and substance reasonably satisfactory to the Agent and (D) the Borrower and the Proposed New Lender shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Agent shall have reasonably requested in connection with such increase. If any new Lender(sfee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the Agent to the Borrower. No less than two (2) becoming Business Days prior to the effective date of the increase of the Aggregate Commitment, the Agent shall notify the Borrower of the amount of the fee to be charged by the Lenders, and the Borrower may, at least one (1) Business Day prior to such effective date, cancel its request for the commitment increase. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean (1) each Lender the Effective Commitment Amount of which is greater than its Commitment prior to the effective date of any increase in the Aggregate Commitment and (2) each Proposed New Lender that is allocated an Effective Commitment Amount in connection with any Commitment Increase Notice and (b) the term “Selling Lender(s)” shall mean each Lender whose Commitment is not being increased from that in effect prior to such requested increase must be an Eligible Assigneein the Aggregate Commitment. In Effective on the event a new effective date of any increase in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender or Lenders become a party hereby sells, grants, assigns and conveys to this Agreementeach Buying Lender, without recourse, warranty, or if representation of any existing Lender agrees kind, except as specifically provided herein, an undivided percentage in such Selling Lender’s right, title and interest in and to increase its Commitmentoutstanding Loans in the respective Dollar Amounts and percentages necessary so that, from and after such Lender sale, each such Selling Lender’s outstanding Loans shall equal such Selling Lender’s Pro Rata Share (calculated based upon the Effective Commitment Amounts) of the outstanding Loans. Effective on the effective date it becomes a of the increase in the Aggregate Commitment pursuant to clause (i) above, each Buying Lender hereunder hereby purchases and accepts such grant, assignment and conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its respective purchase price for the portion of the outstanding Loans purchased hereby shall equal the respective Dollar Amount necessary so that, from and after such payments, each Buying Lender’s outstanding Loans shall equal such Buying Lender’s Pro Rata Share (or increases its Commitmentcalculated based upon the Effective Commitment Amounts) of the outstanding Loans. Such amount shall be payable on the effective date of the increase in the Aggregate Commitment by wire transfer of immediately available funds to the Agent. The Agent, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect turn, shall wire transfer any such funds received to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal OfficeSelling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Buying Lender that such Selling Lender owns the Loans being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Loans, except for participations which will be extinguished upon payment to Selling Lender of an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased being sold by such Selling Lender. Each Buying Lender plus (b) hereby acknowledges and agrees that, except for each Selling Lender’s representations and warranties contained in the aggregate amount foregoing sentence, each such Buying Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of payments previously made by its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansLoan Documents. The Borrower shall also pay hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment sale and assignment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurocurrency Loan hereunder on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase terms and in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements manner as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, set forth in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 3.4.
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Increase of Commitments. Subject (a) Provided there exists no Default, upon notice to the approval of the Administrative Agent (which shall not be unreasonably withheld or delayedpromptly notify the Lenders), the Borrower shall have the right Company may from time to time request an increase in the aggregate Aggregate Commitments by an amount of (for all such requests) that will not result in the Commitments (provided that Aggregate Commitment under this Agreement exceeding $400,000,000 less the aggregate amount of such increases in reductions to the Commitments made pursuant to this Section 2.11. The Company may (in consultation with the Administrative Agent) accomplish such an increase by doing either or both of the following:
(1) inviting one or more Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel; or
(2) requesting the Lenders to increase the amount of the Aggregate Commitments in accordance with the procedure set forth in clause (b).
(b) If the Company (in consultation with the Administrative Agent) requests that the Lenders increase the amount of the Aggregate Commitments, the Company (in consultation with the Administrative Agent) shall not exceed $55,000,000) by providing written specify the time period within which each Lender is requested to respond (which shall in no event be less than 10 Banking Days from the date of delivery of such notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the AgentLenders). Each Lender shall notify the Agent within ten (10) Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Administrative Agent within such time periodperiod whether or not it agrees to increase its Commitment and, then if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. No The Administrative Agent shall notify the Company and each Lender of the Lender’s responses to each request made hereunder.
(c) If the Aggregate Commitment is increased in accordance with this Section, the Administrative Agent and the Company shall be required determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to increase its Commitment such increase, the Company shall 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 Official of such Loan Party
(1) certifying and any new Lender(sattaching the resolutions adopted by such Loan Party approving or consenting to such increase, and
(2) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (the Company, certifying that, before and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of increase,
(aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by representations and warranties contained in Article V and the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Loan Documents are true and the Borrower shall pay to such other Lenders interest accrued and unpaid to correct on and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Increase Effective Date, except to the Lenders amounts payable, if any, to extent that such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or and warranties which expressly relate solely 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 Section, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1(a) and (b), and
(B) no Default exists. In connection The Company shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.10) to the extent necessary to keep the outstanding Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the aggregate amount of the Commitments pursuant to under this subsection, Section.
(Ad) This Section supercedes any Lender becoming a party hereto shall execute such documents provisions in Sections 2.8 and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver 10.1 to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmentcontrary.
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the Borrower shall have the right to a) The Borrowers may request an increase in the amount of the Aggregate Commitment by offering to the Lenders or to other prospective Eligible Lenders acceptable to the Administrative Agent ("PROSPECTIVE LENDERS") the opportunity to increase their Commitments or to extend Commitments hereunder; PROVIDED, HOWEVER, the Borrowers shall not request an increase that would cause the Aggregate Commitment after giving effect to such increase to exceed $600,000,000, and the Borrowers shall not make more than four Aggregate Commitment increase requests under this SECTION 2.16 in any calendar year; and PROVIDE, FURTHER, each Lender or Prospective Lender may accept or reject such request in its sole and absolute discretion. Any such request shall be sent to the Lenders, the Prospective Lenders and the Administrative Agent and shall (A) refer to this Agreement, (B) specify (i) the aggregate amount of the Commitments increase that is sought and (provided that ii) the aggregate name of each Lender and Prospective Lender to which the opportunity to increase or extend a Commitment is to be offered and the amount of such increases in offer, and (C) request that Lenders wishing to increase their Commitments and Prospective Lenders wishing to extend new Commitments notify the Commitments pursuant Administrative Agent within 14 days of the date of the Borrower's request. Failure to respond within such period shall be deemed a REJECTION of the Borrower's offer. Subject to the penultimate sentence of this Section shall not exceed $55,000,000) by providing written notice to 2.16, the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount Commitment of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right that agrees to increase its such Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase under this SECTION 2.16 shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten effective A/72335952.4 16 fifteen (1015) Business Days (or such later date as is acceptable to the Borrowers and the Administrative Agent) after receipt the date of the AgentBorrowers' request without any further action by the Lenders or any amendment to this Agreement. Upon the effectiveness of any increase in a Lender's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender SCHEDULE II shall be deemed to have declined been amended to reflect the increase its in such Lender's Commitment. No Each Prospective Lender that accepts the Borrowers' offer to extend a Commitment shall be required to increase its Commitment and any new Lender(s) becoming become a party to this Agreement on such date or dates as may be mutually satisfactory to such Prospective Lender, the Borrowers and the Administrative Agent, subject to the Administrative Agent's receipt of a duly completed and executed accession agreement in connection with a form reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any accession agreement to which any Prospective Lender is a party, (i) such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Prospective Lender shall on the date it becomes be entitled to all rights, benefits and privileges accorded a Lender hereunder and (or increases its Commitment, in ii) SCHEDULE II shall be deemed to have been amended to reflect the case Commitment of such Prospective Lender (as an existing additional Lender) (as provided in such accession agreement. Notwithstanding the foregoing, no increase in a Lender's Commitment and no extension of a Commitment by a Prospective Lender shall become effective until such time as the Administrative Agent shall have received a condition thereto) purchase from written opinion of the other Lenders its Commitment Percentage (as determined after giving effect Borrower's legal counsel, addressed to the increase of Commitments) of any outstanding Revolving Loans, by making available Administrative Agent and the Lenders and in form and substance satisfactory to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving LoansAdministrative Agent. The Borrower Administrative Agent shall also pay give prompt notice to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result each Lender of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request increase in any Lender's Commitment and (B) the Borrower shall make appropriate arrangements so that each new Commitment of any additional Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmenteach case under this SECTION 2.16.
Appears in 1 contract
Sources: Credit Agreement (American Century California Tax Free & Municipal Funds)
Increase of Commitments. Subject (i) At any time prior to the approval Commitment Termination Date, the Company may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Agent Lenders, (which a) the Aggregate Commitment shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase in at no time exceed $152,500,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section 2.6.3; (b) the Combined Commitment shall not at no time exceed $55,000,000255,000,000; and (c) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 25,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Administrative Agent shall promptly notify each Lender and the Lenders by the Company not less than twenty (20) Business Days prior to the proposed effective date of such requestincrease, which notice (a "COMMITMENT INCREASE NOTICE") shall specify the amount of the proposed increase in the Aggregate Commitment and the proposed effective date of such increase. Each existing In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase ratably in proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall have the right any obligation to increase its Commitment by an amount so that such Lender's pursuant to a Commitment Percentage shall not be decreased as a result of such requested increase in the CommitmentsIncrease Notice. All other allocations of such requested increase shall be subject On or prior to the approval of the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Administrative Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Administrative Agent within being herein a "LENDER INCREASE NOTICE"). Any Lender which does not submit a Lender Increase Notice to the Administrative Agent prior to the expiration of such time period, then such Lender fifteen (15) Business Day period shall be deemed to have declined to denied any increase in its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new that the increases of Commitments set forth in the Lender or Lenders Increase Notices exceed the amount requested by the Company in the Commitment Increase Notice, the Administrative Agent and the Arranger shall have the right, in consultation with the Company, to allocate the amount of increases necessary to meet the Company's Commitment Increase Notice. In the event that the Lender Increase Notices are less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any financial institution that shall have agreed to become a "Lender" party to this Agreement, or if any existing Lender agrees to increase its Commitment, such hereto (a "PROPOSED NEW LENDER") in connection with the Commitment Increase Notice. Any Proposed New Lender shall on be consented to by the date it becomes a Lender hereunder Administrative Agent (or increases its Commitment, in which consent shall not be unreasonably withheld). If the case of an existing LenderCompany shall not have arranged any Proposed New Lender(s) (and as a condition thereto) purchase to commit to the shortfall from the other Lenders Lender Increase Notices, then the Company shall be deemed to have reduced the amount of its Commitment Percentage (as determined after giving effect Increase Notice to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously set forth in the Lender Increase Notices. Based upon the Lender Increase Notices, any allocations made by in connection therewith and any notice regarding any Proposed New Lender, if applicable, the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, Administrative Agent shall notify the Company and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of or before the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Business Day immediately prior to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the proposed effective date of such increase or the amount of each Lender's and Proposed New Lenders' Commitment (ythe "EFFECTIVE COMMITMENT AMOUNT") any representation or warranty made or deemed made by and the Borrower or any other Obligor in any Loan Document to amount of the Aggregate Commitment, which any such Obligor is a party is not (or would not be) true or correct in all material respects amounts shall be effective on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date)following Business Day. In connection with any Any increase in the aggregate amount of Aggregate Commitment shall be subject to the Commitments pursuant to this subsection, following conditions precedent: (A) any Lender becoming a party hereto the Company shall execute such documents have obtained the consent thereto of each Guarantor and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days reaffirmation of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.Loan Document(s)
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Acuity Brands Inc)
Increase of Commitments. Subject At any time, but not more than four (4) times during the term of this Agreement, the Borrower may request that the aggregate of the Commitments (the “Aggregate Commitment”) be increased by increasing the Revolving Commitments and/or obtaining incremental Term Loans hereunder; provided that (i) the aggregate amount of such increases shall not exceed $500,000,000 during the term of this Agreement and (ii) such request shall be in a minimum amount of $50,000,000. Any such incremental Term Loans (A) shall rank pari passu in right of payment and of security with the Revolving Loans and all other Term Loans, (B) shall not mature earlier than the Tranche B Maturity Date (but may, subject to the approval next succeeding clause (C), have amortization prior to such date), (C) shall not have a weighted average life that is shorter than the then-remaining weighted average life of the Tranche B Term Loans and (D) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that (1) the terms and conditions applicable to such incremental Term Loans maturing after the Tranche B Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Tranche B Maturity Date and (2) such incremental Term Loans may be priced differently than the Tranche B Term Loans. Such request shall be made in a written notice given to the Administrative Agent and the Lenders by the Borrower not less than ten (10) Business Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the amount of the proposed increase in the Aggregate Commitment, whether such increase is to be allocated to the Revolving Commitments and/or incremental Term Loans and the proposed effective date of such increase. The Borrower may notify the Administrative Agent of any financial institution that shall have agreed to become a “Revolving Lender” party hereto (a “Proposed New Lender”) in connection with the Commitment Increase Notice and any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not be unreasonably withheld or delayed). The Administrative Agent shall notify the Borrower and the Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of each Lender’s and Proposed New Lender’s Revolving Commitment and/or incremental Term Loan commitment (collectively, the Borrower “Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amount shall have be effective on the right to request an following Business Day. Any increase in the aggregate amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Aggregate Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval following conditions precedent: (A) as of the Agent. Each Lender shall notify the Agent within ten (10) Business Days after receipt date of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, Commitment Increase Notice no event shall have occurred and then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) continuing which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) constitutes a Default or Event of Default and the Borrower and its Subsidiaries shall be in existence compliance, calculated on a pro forma basis reasonably acceptable to the Administrative Agent, with the covenants contained in Section 6.11, (B) the Borrower, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Revolving Commitment” or incremental Term Loans in support of such increase in the Aggregate Commitment shall have executed and delivered a “Commitment and Acceptance” substantially in the form of Exhibit C, (C) counsel for the Borrower shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent, (D) the Borrower and each Proposed New Lender shall otherwise have executed and delivered such other instruments and documents that the Administrative Agent shall have reasonably requested in connection with such increase and (E) the Administrative Agent shall have administered any relevant reallocation of the Credit Exposures on the effective date of such increase or ratably among the relevant Lenders (yincluding new Lenders) after giving effect to such increase. The Borrower hereby agrees to compensate each Lender for all losses, expenses and liabilities incurred by such Lender in connection with the sale and assignment of any representation or warranty made or deemed made by LIBOR Loan hereunder on the terms and in the manner as set forth in Section 2.16 hereof. Upon satisfaction of the conditions precedent to any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on and each Lender of the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date)increase. In connection with Upon the effective date of any increase in the aggregate amount of the Commitments pursuant Aggregate Commitment that is supported by a Proposed New Lender, such Proposed New Lender shall be a party to this subsectionAgreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, (A) or otherwise be deemed to be, a commitment on the part of any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and to increase its Revolving Commitment or provide incremental Term Loans at any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitmenttime.
Appears in 1 contract
Sources: Credit Agreement (Dean Foods Co)
Increase of Commitments. Subject (a) The Borrower may from time to time, by written notice to the approval of the Administrative Agent (which shall not be unreasonably withheld or delayedpromptly deliver a copy to each of the Lenders), request that the Borrower shall have the right to request Commitments be increased by an increase amount that is not less than $50,000,000 and an integral multiple of $10,000,000 and that will not result in the aggregate Commitments exceeding $600,000,000. Each such notice shall set forth (i) the requested amount of the Commitments (provided that the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must and (ii) the date on which such increase is to become effective (which shall be an aggregate minimum amount not fewer than forty-five (45) nor more than sixty (60) days after the date of $10,000,000 such notice), and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify offer each Lender of such request. Each existing Lender shall have the right opportunity to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in its ratable share, based on the Commitments. All other allocations of such requested increase shall be subject to the approval pro rata amounts of the AgentCommitments as of the date of the requested increase. Each Lender shall notify shall, by notice to the Borrower and the Administrative Agent within ten given not more than fifteen (1015) Business Days after receipt the date of the AgentBorrower's notice whether such Lender wishes notice, either agree to increase its Commitment by all or a portion of the offered amount of or decline to increase its Commitment. If Commitment (and any Lender that does not deliver such a Lender fails to deliver any such notice to the Agent within such time period, then such Lender period of fifteen (15) Business Days shall be deemed to have declined to increase its Commitment).
(b) In the event that, on the 15th Business Day after the Borrower shall have delivered a notice pursuant to paragraph (a) above, the Lenders shall have agreed pursuant to paragraph (a) above to increase their Commitments by an aggregate amount less than the increase in the Commitments requested by the Borrower, the Borrower shall offer to the Lenders who have agreed to the ratable increase (the "Increasing Lenders"), the right to increase their Commitments by such unsubscribed amount. No Each such Increasing Lender shall, by notice to the Borrower and the Administrative Agent given not more than ten (10) Business Days after such request, advise the Borrower whether it has elected to an additional increase of all or any portion of such unsubscribed amount (and any Increasing Lender that does not deliver such a notice within such period of ten (10) Business Days shall be required deemed to have declined to further increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible AssigneeCommitment). In the event a new that more than one Increasing Lender or Lenders become a party elects to this Agreement, or if any existing Lender agrees to further increase its Commitment, the Borrower and the Managing Agents shall allocate such Lender shall on the date it becomes a Lender hereunder (or increases its Commitmentadditional amount so as to preserve, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase extent possible, the relative pro rata shares of Commitments) of any outstanding Revolving Loans, by making available the Increasing Lenders prior to such request. If the Agent Increasing Lenders do not subscribe for the account of total unsubscribed amount, the Borrower shall have the right to arrange for one or more banks (any such other Lenders at the Principal Office, bank being called an "Augmenting Lender") to extend Commitments in same day funds, an aggregate amount equal to the sum unsubscribed amount, provided that each Augmenting Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld).
(c) If (and only if) Lenders (including Augmenting Lenders) shall have agreed to increase their Commitments or to extend new Commitments in an aggregate amount not less than $50,000,000, such increases and such new Commitments shall become effective on the date specified in the notice delivered by the Borrower pursuant to paragraph (a) ); provided that the portion of the outstanding principal amount of Borrower and any Augmenting Lender shall deliver such Revolving Loans to Notes, opinions, certificates and other documentation as may be purchased by such Lender plus (b) the aggregate amount of payments previously made requested by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and Administrative Agent as of such date on such portion of the outstanding principal amount of such Revolving Loansdate. The Borrower Administrative Agent shall also pay enter any modifications made to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments Register maintained pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total CommitmentSection 8.5(c).
Appears in 1 contract
Sources: Credit Agreement (Harris Corp /De/)
Increase of Commitments. Subject to the approval of the Agent (which shall not be unreasonably withheld or delayed), the Borrower shall have the right to request an increase increases in the aggregate amount of the Commitments (provided that there shall be no more than three such increases in the Commitments and the aggregate amount of such increases in the Commitments pursuant to this Section shall not exceed $55,000,000250,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 50,000,000 and integral multiples of $1,000,000 5,000,000 in excess thereof. The Agent shall promptly notify each Lender of any such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent within ten (10) 10 Business Days after receipt of the Agent's notice whether such Lender wishes to increase the amount of its Commitment. If a Lender fails to deliver any such notice to the Agent within such time period, then such Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (aA) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (bB) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e2.2.(e) or 2.4(j2.3.(j) which have not been repaid, and the Borrower shall pay to such other Lenders repaid plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 4.4. as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor Loan Party in any Loan Document to which any such Obligor Loan Party is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (Aa) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (Bb) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) 2 Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.
Appears in 1 contract
Increase of Commitments. Subject to the approval of the Agent (which shall i) At any time, but not be unreasonably withheld or delayed)more than twice, the Borrower may request that the Aggregate Commitment be increased; provided that, without the prior written consent of all of the Lenders, (a) the Aggregate Commitment shall have the right to request an increase in at no time exceed $200,000,000 minus the aggregate amount of the Commitments (provided that the aggregate amount of such increases all reductions in the Commitments Aggregate Commitment previously made pursuant to this Section shall not exceed $55,000,0002.6(A); and (b) by providing written notice to the Agent, which notice each such request shall be irrevocable once given. Each such increase in the Commitments must be an aggregate a minimum amount of at least $10,000,000 and integral multiples increments of $1,000,000 5,000,000 in excess thereof. The Such request shall be made in a written notice given to the Agent shall promptly notify each Lender and the Lenders by the Borrower not less than twenty (20) Business Days prior to the proposed effective date of such request. Each existing Lender increase, which notice (a "Commitment Increase Notice") shall have specify the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested the proposed increase in the Commitments. All other allocations Aggregate Commitment and the proposed effective date of such increase. In the event of such a Commitment Increase Notice, each of the Lenders shall be given the opportunity to participate in the requested increase shall be subject ratably in the proportions that their respective Commitments bear to the approval of Aggregate Commitment under this Agreement. On or prior to the Agent. Each Lender shall notify the Agent within ten date that is fifteen (1015) Business Days after receipt of the Agent's Commitment Increase Notice, each Lender shall submit to the Agent a notice whether such Lender wishes indicating the maximum amount by which it is willing to increase the amount of its Commitment. If a Lender fails to deliver Commitment in connection with such Commitment Increase Notice (any such notice to the Agent within such time period, then such being herein a "Lender shall be deemed to have declined to increase its Commitment. No Lender shall be required to increase its Commitment and any new Lender(s) becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount equal to the sum of (a) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (b) the aggregate amount of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower shall pay to such other Lenders interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier dateIncrease Notice"). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Any Lender becoming which does not submit a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the principal face amount thereof to 30% of the new Total Commitment.
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Increase of Commitments. Subject (a) So long as, after giving pro forma effect to any such increase, (x) no Default or Event of Default has occurred and is continuing on the date thereof and (y) the Borrower is in compliance with the covenants set forth in Sections 6.16 and Section 6.17 (assuming for purposes of this Section 2.18(a) that the Commitments, including any proposed increase in Tranche B Commitments, are fully drawn) (as evidenced by a certificate of a Financial Officer delivered to the Administrative Agent on the date the Borrower submits a Commitment Increase Notice), the Borrower may at any time and from time to time request an increase of the aggregate Tranche B Commitments by notice under Section 2.18(a) or (b) to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $25,000,000, (ii) the cumulative increase in Tranche B Commitments pursuant to this Section 2.18 shall not exceed $50,000,000, (iii) the Tranche B Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Commitments shall not exceed $350,000,000(w) if such increase occurs prior to December 31, 2016, $300,000,000, (x) if such increase occurs on or after December 31, 2016 and prior to June 30, 2017, $250,000,000, (y) if such increase occurs on or after June 30, 2017 and prior to December 31, 2017, $225,000,000 or (z) if such increase occurs on or after December 31, 2017, $200,000,000, in each case, without the approval of the Required Lenders. If the Borrower elects to increase the aggregate Tranche B Commitments by increasing the Tranche B Commitment of a Lender, the Borrower, the Administrative Agent and such Lender shall execute an agreement (a “Commitment Increase Agreement”), in substantially the form attached hereto as Exhibit B, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Tranche B Commitment as so increased, and the definition of “Tranche B Commitment” in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. No Lender shall have any obligation whatsoever to agree to increase its Commitment. Each Commitment Increase Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) The Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of the Commitments (provided that the aggregate amount of such increases in the increased Tranche B Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once givenAdministrative Agent with a Commitment Increase Notice. Each such increase Promptly and in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Agent. Each Lender shall notify the Agent any event within ten five (105) Business Days after receipt of a Commitment Increase Notice from the Agent's notice whether such Lender wishes to increase the amount Borrower of its desire to offer to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of the increased Tranche B Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Tranche B Commitments shall execute and deliver to the Administrative Agent a New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit C, setting forth its Tranche B Commitment. If , and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender fails to deliver any such notice for all purposes and to the Agent within such time periodsame extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, then such Lender and the signature pages hereof shall be deemed to have declined be amended to add the name of such New Lender and the definition of “Tranche B Commitment” in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase its Commitment. No the aggregate Tranche B Commitments of the Tranche B Revolving Lenders by the Tranche B Commitment of such New Lender, provided that the Tranche B Commitment of any New Lender shall be required an amount not less than $5,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Tranche B Commitments effected by such agreements by appropriate entries in the Register.
(e) If any bank or financial institution becomes a New Lender pursuant to Section 2.18(c) or any Tranche B Revolving Lender’s Tranche B Commitment is increased pursuant to Section 2.18(a), additional Revolving Loans made on or after, participations in Letters of Credit issued on or after, and any new Lender(sparticipations in Swingline Loans made on or after, the effectiveness thereof (the “Re-Allocation Date”) becoming a party shall be made pro rata based on their respective Commitments in effect on or after such Re-Allocation Date (except to this Agreement in connection with the extent that any such requested increase must be an Eligible Assignee. In pro rata Loans or participations in Letters of Credit or Swingline Loans, as the event a new case may be, would result in any Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase exceeding its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
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Increase of Commitments. Subject (a) If no Default, Event of Default or Material Adverse Change shall have occurred and be continuing at the time of delivery of the Commitment Increase Notice, the Borrower may at any time and from time to time request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount of such proposed increase (such notice, a “Commitment Increase Notice”); provided, however, that (i) each such increase shall be at least $10,000,000, (ii) the cumulative increase in Commitments pursuant to this Section 2.20 shall not exceed $150,000,000 without the approval of the Required Lenders, (iii) the Commitment of any Lender may not be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’ Revolving Loan Commitments shall not exceed $550,000,000 without the approval of the Required Lenders. The Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall so notify the Administrative Agent in writing no later than fifteen (15) days after receipt by the Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its Commitment pursuant to this Section 2.20 shall, in each case, execute a Commitment Increase Agreement, in substantially the form attached hereto as Exhibit C, with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Revolving Loan Commitment as so increased, and the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the Administrative Agent within such period that it will increase its Revolving Loan Commitment shall be deemed to have rejected such offer to increase its Revolving Loan Commitment. No Lender shall have any obligation whatsoever to agree to increase its Revolving Loan Commitment. Any agreement to increase a Lender’s pro rata share of the increased Revolving Loan Commitment shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any Person that is not at such time a Lender (which consent shall not be unreasonably withheld or delayed), offer to any existing Lender or to one or more additional banks or financial institutions the Borrower shall have the right opportunity to request an increase participate in the aggregate amount all or a portion of such unsubscribed portion of the Commitments (provided that the aggregate amount of such increases in the increased Commitments pursuant to this Section shall not exceed $55,000,000paragraph (c) below by providing written notice to notifying the Agent, which notice shall be irrevocable once given. Each such increase in the Commitments must be an aggregate minimum amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent shall promptly notify each Lender of such request. Each existing Lender shall have the right to increase its Commitment by an amount so that such Lender's Commitment Percentage shall not be decreased as a result of such requested increase in the Commitments. All other allocations of such requested increase shall be subject to the approval of the Administrative Agent. Each Lender shall notify the Agent Promptly and in any event within ten five (105) Business Days after receipt of notice from the Agent's notice whether Borrower of its desire to offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to financial institutions identified therein or such additional banks or financial institutions identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall notify such proposed lenders of the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Revolving Loan Commitments shall execute and deliver to the Administrative Agent a New Lender wishes Agreement (a “New Lender Agreement”), in substantially the form attached hereto as Exhibit D, setting forth its Revolving Loan Commitment, and upon the effectiveness of such New Lender Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to add the name of such New Lender and the definition of Revolving Loan Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed amended to increase the aggregate Commitments of the Lenders by the Commitment of such New Lender, provided that the Revolving Loan Commitment of any New Lender shall be an amount not less than $10,000,000. Each New Lender Agreement shall be irrevocable and shall be effective upon notice thereof by the Administrative Agent at the same time as that of all other New Lenders. Any Lender that accepts an offer to it by the Borrower to increase its Commitment. If Commitment pursuant to this Section 2.20 shall, in each case, execute a Lender fails to deliver any such notice to Commitment Increase Agreement with the Agent within such time periodBorrower and the Administrative Agent, then 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 the definition of Commitment in Section 1.01 and Schedule 2.01 hereof shall be deemed to have declined be amended to increase its Commitment. No reflect such increase.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be required contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower and legal opinions of counsel to increase its the Borrower as the Administrative Agent shall reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent. Once a New Lender Agreement or Commitment and Increase Agreement becomes effective, the Administrative Agent shall reflect the increases in the Commitments effected by such agreements by appropriate entries in the Register.
(e) If any new Lender(sbank or financial institution becomes a New Lender pursuant to Section 2.20(c) becoming a party or any Lender’s Commitment is increased pursuant to this Agreement Section 2.20, additional Revolving Loans made on or after the effectiveness thereof (the “Re-Allocation Date”) shall be made pro rata based on their respective Commitments in connection with effect on or after such Re-Allocation Date (except to the extent that any such requested increase must be pro rata borrowings would result in any Lender making an Eligible Assignee. In the event a new Lender or Lenders become a party to this Agreement, or if any existing Lender agrees to increase aggregate principal amount of Revolving Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Loans on the date it becomes a Lender hereunder (or increases its Commitmentlast day of the Interest Period applicable thereto or, in the case of an existing Lender) (and as a condition thereto) purchase from ABR Loan, on the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account date of such other Lenders at increase, and the Principal Office, in same day funds, an amount equal to the sum making of (a) the portion new Loans of the outstanding same Type pro rata based on the respective Revolving Loan Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Revolving Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to be purchased by such Lender plus (b) prepay any thereof in accordance with the aggregate amount applicable provisions of payments previously made by the other Lenders under Sections 2.2(e) or 2.4(j) which have not been repaidthis Agreement), and the Borrower shall pay to such other Lenders interest accrued on and unpaid to and as repayments of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall also pay Eurodollar Loans will be paid thereon to the respective Lenders amounts payable, if any, to holding such Lenders under Section 4.4 as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if either (x) a Default or Event of Default shall be in existence Eurodollar Loans pro rata based on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Obligor in any Loan Document to which any such Obligor is a party is not (or would not be) true or correct in all material respects on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (A) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably request and (B) the Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of such Lender's Commitment and a Competitive Advance Note within two (2) Business Days of the effectiveness of the applicable increase in the aggregate amount of Commitments. The Borrower shall also execute and deliver to the other Lenders replacement Competitive Advance Notes increasing the respective principal face amount amounts thereof to 30% of the new Total Commitmentoutstanding.
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