Increased Amounts. (a) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Lender to be effected under this Section 2.18 (collectively, the “Added Commitments”) shall be, other than increases pursuant to clause (ii) above, in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder exceeding $781,582,051.61, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Commitment. The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment each of the following items with respect to each Added Lender and Increasing Lender: (i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Lender, the proposed effective date for the increase in Extended Revolving Credit Commitments, the amounts of the Added Commitments of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent; (ii) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; and (iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Lender for the sole account of the Administrative Agent. (b) Upon receipt of any notice referred to in clause (a)(i) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and upon delivery to the Administrative Agent by each Added Lender and Increasing Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Commitments) of Extended Revolving Credit Outstandings and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable (the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit Lender” for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other Lender’s Revolving Percentage shall be adjusted to reflect the Added Commitments and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, and (ii) on the Increased Commitment Date, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Lender and Added Lender (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings. (c) This Section 2.18 shall supersede any provisions in Section 11.1 and 11.6 to the contrary.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Autonation, Inc.), Five Year Credit Agreement (Autonation, Inc.)
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), effectuate an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons (other than a natural person or the Borrower or any of its Subsidiaries) acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended the sum of Added Revolving Credit Commitments pursuant to this Section 2.18 and the aggregate principal amount of all Added Term Loans shall result in not exceed $500,000,000 and the sum of the Extended Total Revolving Credit Commitment hereunder exceeding (after giving effect to all Added Revolving Credit Commitments) and the aggregate principal amount of all Added Term Loans shall not exceed $781,582,051.612,400,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained the consents of any Lenders providing such tranche of Added Term Loans (defined below), to effectuate during the period commencing on the Closing Date and prior to the Stated Termination Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions reasonably satisfactory to the Borrower and each Added Term Lender (as defined below), (B) shall rank pari passu in right of payment with the Revolving Credit Loans, (C) shall be treated substantially similar to the Revolving Credit Loans; provided that (i) the terms and conditions applicable to any tranche of Added Term Loans maturing after the Stated Termination Date may provide for material additional or different financial or other covenants applicable only during periods after the Stated Termination Date, (ii) the Added Term Loans may be priced differently than the Revolving Credit Loans (including without limitation in respect of the interest rate margins, upfront fees, original issue discount, any interest rate floors and any arrangement or commitment fees applicable to the Added Term Loans), (iii) the terms of any such Added Term Loan may provide for the inclusion, as appropriate, of Added Term Lenders in any required vote or action of the Required Lenders or of the Lenders of each tranche hereunder and may provide class protection for any additional credit facilities, and (iv) the prepayment provisions with respect to any Added Term Loans may differ from those applicable to the Revolving Credit Loans, (D) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000 and (E) shall have a final stated maturity date that is on or later than the Stated Termination Date and may provide for customary amortization; provided, further that (1) the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder, shall not exceed $2,400,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. Any Lender extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower; provided that in no event shall any such Lender be a natural person or the Borrower or any of its Subsidiaries or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person, or a Defaulting Lender. Notwithstanding anything to the contrary in this Agreement, any Added Term Loans the proceeds of which will be used to finance a Limited Condition Acquisition shall be subject to the provisions of Section 1.7.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) (A) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; andCommitment or extends Added Term Loans, as applicable and (B) in the case of Added Term Loans, an amendment to this Agreement to the extent necessary in order to effect such Added Term Loans, which amendment shall only be required to be signed by the Borrower, the Administrative Agent and each Added Term Lender to the extent that such amendment relates only to such Added Term Loans or affects only the Lenders providing such Added Term Loans;
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Revolving Credit Lender, the product of the increase in such Increasing Revolving Credit Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Revolving Credit Lender shall constitute a “Revolving Credit Lender” ”, each such Added Lender in respect of an Added Term Loan shall constitute an “Added Term Lender”, and each such Added Term Lender and Added Revolving Credit Lender shall constitute a “Lender”, in each case for all purposes under this Agreement and related documents and without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other such Increasing Revolving Credit Lender’s Revolving Percentage shall be adjusted to reflect the Added Revolving Credit Commitments and shall be specified in such revised Exhibit A, as the case may be. A. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, Revolving Credit Commitments and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such LenderXxxxxx’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 (other than the last paragraph of Section 11.6) to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. Company may by written notice to Administrative Agent elect to either (A) increase the Revolving Credit Commitments (any such increase, "New Revolving Credit Commitments") and/or (B) establish a new term loan facility (the "New Term Loan Commitments"), by an amount not in excess of $1,000,000,000 in the aggregate and not less than $50,000,000 individually and integral multiples of $50,000,000 in excess of that amount. Each such notice shall specify (a) The Borrower the date (each, an "Increased Amount Date") on which Company proposes that the New Revolving Credit Commitments or that the New Term Loan Commitments, as applicable, shall have the right from time to time, without the consent of the Lenders, subject be effective and that revolving loans made pursuant to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third partiesNew Revolving Credit Commitments (collectively, to effectuate, (i"New Revolving Loans") prior and/or Term Loans made pursuant to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment New Term Loan Commitments (other collectively, "New Term Loans") shall be made, as applicable, which shall be made not less than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and 10 Business Days after the date on which such notice is delivered to Administrative Agent and (b) the Borrower takes identity of each Lender or other Person that meets the requirements of an Eligible Assignee (each, a "New Revolving Lender" or a "New Term Loan Lender", as applicable) to whom Company proposes any action portion of such New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided any Lender approached by Company may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment. Any New Revolving Loans or New Term Loans made shall be deemed to be a separate series ("Series") of such New Revolving Loans or New Term Loans, as applicable, for all purposes of this Agreement. Each Series of New Revolving Loan Commitments or New Term Loan Commitments shall become effective and any Series of New Revolving Loans or New Term Loans shall be made, as applicable, as of such Increased Amount Date, provided:
(1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Series of New Revolving Loan Commitments or New Term Loan Commitments, as applicable;
(2) both before and after giving effect to the making of such Series of New Revolving Loans or New Term Loans each of the conditions set forth in Section 3.2 shall be satisfied;
(3) such Series of New Revolving Loan Commitments and/or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more joinder agreements, in each case in form and substance reasonably satisfactory to Administrative Agent, and executed and delivered to Company and Administrative Agent and recorded in the Register (each, a "Joinder Agreement"), each of which shall be subject to the requirements of Section 2.18(c);
(4) Company shall make any payments required pursuant to Section 4.8(e2.16(c);
(5) Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction;
(6) If the maturity date for any Series of New Revolving Loans or New Term Loans is after June 30, 2007, such maturity date will be accelerated to June 30, 2007 if the notice specified in Section 5.1(k)(ii) has not been received by the Administrative Agent prior to June 30, 2007;
(7) The first aggregate $500,000,000 of all Series of New Revolving Credit Commitments and/or New Term Loans (the "First Increment") shall be available only if (i) Tranche A Term Loans equal to $387,500,000 have been made, (ii) the terms of each Series of the First Increment, as specified in the applicable Joinder Agreement or agreements, are not materially less favorable to Company than the terms of Tranche B Term Loan, (iii) no scheduled repayment or amortization of any Series of the First Increment occurs earlier than for Tranche A Term Loans, and (iv) the interest rate applicable for each Series of the First Increment is no greater than the interest rate for Tranche B Term Loans plus 0.25% per annum; and
(8) The second aggregate $500,000,000 of such increased commitments (the "Second Increment") shall be available only if (i) the weighted average life of each Series of the Second Increment (which shall be a term facility) is longer than the weighted average life collectively of Tranche A Term Loan, Tranche B Term Loan and the Revolving Loans (not including any New Revolving Loans or New Term Loans), an increase (ii) the terms of each Series of the Second Increment, as specified in the Extended Total applicable Joinder Agreement or agreements, are not materially less favorable to Company than the terms of Tranche B Term Loan, (iii) the final maturity of each Series of the Second Increment is six months after the Tranche B Term Loan Maturity Date (subject to acceleration as specified in clause (6) above), and (iv) a corresponding dollar-for-dollar amount of the Revolving Loan (up to a maximum of $275,000,000) is converted to a Tranche A Term Loan, and the Revolving Credit Commitment is permanently reduced by such amount. On any Increased Amount Date on which any Series of New Revolving Loan Commitments of any Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Revolving Lenders shall assign to each of the New Revolving Lenders of such Series, and each of the New Revolving Lenders of such Series shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the amount equal Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to or less than (in the discretion of the Borrower) the amount all such assignments and purchases, such Revolving Loans will be held by Revolving Lenders and New Revolving Lenders of such terminated Series ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments of such Series and (B) each New Revolving Lender of such Series shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable Series and all matters relating thereto. On any Increased Amount Date on which any Series of New Term Loan Commitments are effective subject to the Borrower satisfaction of the foregoing terms and reasonably acceptable conditions, (I) each New Lender of such Series shall make a New Term Loan of such Series to Company in an amount equal to its New Term Loan Commitment of such Series, (II) each New Term Loan of such Series shall be deemed for all purposes, a Term Loan, and (III) each New Term Loan Lender of such Series shall become a Lender hereunder with respect to the New Term Loan Commitments of such Series. The Administrative Agent, who shall, Agent shall notify the Lenders promptly upon completion receipt of Company's notice of each Increased Amount Date and in respect thereof the requirements of this Section 2.18, constitute an “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended New Revolving Credit Commitments hereunder (of each an “Increasing Lender”), so that such increased Extended Series and the New Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Lender to be effected under this Section 2.18 (collectively, the “Added Commitments”) shall be, other than increases pursuant to clause (ii) above, in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder exceeding $781,582,051.61, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent Lenders of such LenderSeries, or the New Term Commitments of such Series and (D) there shall not exist any Default or Event the New Term Loan Lenders of Default immediately prior to and immediately after giving effect to any such Added Commitment. The Borrower shall deliver or paySeries, as applicable, to and, in the Administrative Agent not later than five (5) Business Days prior case of each notice to any such increase in the Extended Total Revolving Credit Commitment each of the following items with respect to each Added Lender and Increasing Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Lender, the proposed effective date for respective interests in such Revolving Lender's Revolving Loans subject to the increase in Extended assignments contemplated by this subsection. The terms and provisions of the New Revolving Credit Commitments, the amounts of the Added Commitments of each Series and New Revolving Loans of such Lender that will result (which amounts Series and the New Term Loan Commitments of each Series and New Term Loans of such Series shall be subject identical to confirmation by the Administrative Agent), and such other information type of Commitment or Loans being increased except as is reasonably requested by the Administrative Agent;
(ii) documents otherwise specified in the form of Exhibit K applicable Joinder Agreement or Exhibit LAgreements, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Lender for the sole account of the Administrative Agent.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and upon delivery to the Administrative Agent by each Added Lender and Increasing Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Commitments) of Extended Revolving Credit Outstandings and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable (the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit Lender” for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other Lender’s Revolving Percentage shall be adjusted to reflect the Added Commitments and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, and (ii) on the Increased Commitment Date, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Commitments under the provisions specified in this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Lender and Added Lender (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings2.22.
(c) This Section 2.18 shall supersede any provisions in Section 11.1 and 11.6 to the contrary.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Nextlink Communications Inc /De/)
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), effectuate an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons (other than a natural person or the Borrower or any of its Subsidiaries) acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended the sum of Added Revolving Credit Commitments pursuant to this Section 2.18 and the aggregate principal amount of all Added Term Loans shall result in not exceed $500,000,000 and the sum of the Extended Total Revolving Credit Commitment hereunder exceeding (after giving effect to all Added Revolving Credit Commitments) and the aggregate principal amount of all Added Term Loans shall not exceed $781,582,051.612,300,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained the consents of any Lenders providing such tranche of Added Term Loans (defined below), to effectuate during the period commencing on the Closing Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions reasonably satisfactory to the Borrower and each Added Term Lender (as defined below), (B) shall rank pari passu in right of payment with the Revolving Credit Loans, (C) shall be treated substantially similar to the Revolving Credit Loans; provided that (i) the terms and conditions applicable to any tranche of Added Term Loans maturing after the Stated Termination Date may provide for material additional or different financial or other covenants applicable only during periods after the Stated Termination Date, (ii) the Added Term Loans may be priced differently than the Revolving Credit Loans (including without limitation in respect of the interest rate margins, upfront fees, original issue discount, any interest rate floors and any arrangement or commitment fees applicable to the Added Term Loans), (iii) the terms of any such Added Term Loan may provide for the inclusion, as appropriate, of Added Term Lenders in any required vote or action of the Required Lenders or of the Lenders of each tranche hereunder and may provide class protection for any additional credit facilities, and (iv) the prepayment provisions with respect to any Added Term Loans may differ from those applicable to the Revolving Credit Loans, (D) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000 and (E) shall have a final stated maturity date that is on or later than the Stated Termination Date and may provide for customary amortization; provided, further that (1) the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder, shall not exceed $2,300,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. Any Lender extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower; provided that in no event shall any such Lender be a natural person or the Borrower or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, any Added Term Loans the proceeds of which will be used to finance a Limited Condition Acquisition shall be subject to the provisions of Section 1.7.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) (A) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; andCommitment or extends Added Term Loans, as applicable and (B) in the case of Added Term Loans, an amendment to this Agreement to the extent necessary in order to effect such Added Term Loans, which amendment shall only be required to be signed by the Borrower, the Administrative Agent and each Added Term Lender to the extent that such amendment relates only to such Added Term Loans or affects only the Lenders providing such Added Term Loans;
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Revolving Credit Lender shall constitute a “Revolving Credit Lender” ”, each such Added Lender in respect of an Added Term Loan shall constitute an “Added Term Lender”, and each such Added Term Lender and Added Revolving Credit Lender shall constitute a “Lender”, in each case for all purposes under this Agreement and related documents and without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other such Increasing Revolving Credit Lender’s Revolving Percentage shall be adjusted to reflect the Added Revolving Credit Commitments and shall be specified in such revised Exhibit A, as the case may be. A. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, Revolving Credit Commitments and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such Lender’s Extended Revolving Lendxx’x Xevolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 (other than the last paragraph of Section 11.6) to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to effectuate during the period commencing on the Closing Date and ending on the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder, plus the aggregate principal amount of all Term Loans, plus the aggregate principal amount of all Added Term Loans hereunder exceeding $781,582,051.612,200,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate during the period commencing on the Closing Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions the same as those applicable to the Term Loans (provided however that, (1) if the final stated maturity date for such tranche of Added Term Loans is at least one (1) year later than the latest termination date hereunder and no amortization payments for such tranche are due prior to one (1) year after the latest termination date hereunder, the interest rate applicable to such tranche of Added Term Loans may differ from that applicable to the existing Term Loans, but if the “effective yield” applicable to a given tranche of Added Term Loans (which, for such purposes only, shall be deemed to take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to all Lenders providing such Added Term Loans but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Added Term Loans) determined as of the initial funding date for such Added Term Loans exceeds the “effective yield” then applicable to any Term Loans or any other tranche of Added Term Loans (determined on the same basis as provided in the preceding parenthetical, with the comparative determination to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than 0.50% (the amount of such excess being the “Yield Differential”), the Applicable Margin for such existing Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Added Term Loans, (2) the final stated maturity date for a given tranche of Added Term Loans may be later (but not sooner) than the latest termination date hereunder, (3) the amortization requirements for a given tranche of Added Term Loans may differ, so long as the weighted average life to maturity of such Added Term Loans is no shorter than the average weighted life to maturity applicable to the then outstanding Term Loans, and (4) the other terms of a given tranche of Added Term Loans may differ if reasonably satisfactory to the Administrative Agent) and (B) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000; provided, further that (1) the aggregate principal amount of all Term Loans, plus the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder shall not exceed $2,200,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. The Lenders extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower and reasonably acceptable to the Administrative Agent and upon completion of the requirements of this Section 2.18, constitute a “Term Lender” or “Term Lenders” hereunder.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit CommitmentCommitment or extends Added Term Loans, as applicable; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit Lender” or “Term Lender”, as applicable, for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other Lender’s Revolving Percentage or Term Percentage, as applicable, shall be adjusted to reflect the Added Revolving Credit Commitments or Added Term Loans, as applicable, and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (i) the respective Revolving Percentages or Term Percentages, as applicable, of the Lenders shall be deemed modified as appropriate to correspond to such Added CommitmentsRevolving Credit Commitments or Added Term Loans, as applicable, and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. (a) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 2.15 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to effectuate during the period commencing on the Closing Date and ending on the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e))Commitment, an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.182.15, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.182.15; provided that (Ai) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Lender to be effected under this Section 2.18 2.15 (collectively, the “Added Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (Bii) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 2.15 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder exceeding $781,582,051.61800,000,000, (Ciii) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 2.15 without the consent of such Lender, and (Div) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Commitment. The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment each of the following items with respect to each Added Lender and Increasing Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment pursuant to this Section 2.182.15, which shall specify each Added Lender and Increasing Lender, the proposed effective date for the increase in Extended Revolving Credit Commitments, the amounts of the Added Commitments of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Lender for the sole account of the Administrative Agent.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and upon delivery to the Administrative Agent by each Added Lender and Increasing Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Lender, such Added Lender’s Revolving Applicable Commitment Percentage (after giving effect to all Added Commitments) of Extended Revolving Credit Outstandings and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Applicable Commitment Percentage (after giving effect to all Added Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable (the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit Lender” for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended a Revolving Credit Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other Lender’s Revolving Applicable Commitment Percentage shall be adjusted to reflect the Added Commitments and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (i) the respective Revolving Applicable Commitment Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, and (ii) on the Increased Commitment Date, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Applicable Commitment Percentages arising from any Added Commitments under this Section 2.182.15, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Applicable Commitment Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Applicable Commitment Percentages. Each Increasing Lender and Added Lender (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(c) This Section 2.18 2.15 shall supersede any provisions in Section 11.1 and 11.6 to the contrary.
Appears in 1 contract
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), effectuate an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons (other than a natural person or the Borrower or any of its Subsidiaries) acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended the sum of Added Revolving Credit Commitments pursuant to this Section 2.18 and the aggregate principal amount of all Added Term Loans shall result in not exceed $500,000,000 and the sum of the Extended Total Revolving Credit Commitment hereunder exceeding (after giving effect to all Added Revolving Credit Commitments) and the aggregate principal amount of all Added Term Loans shall not exceed $781,582,051.612,300,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained the consents of any Lenders providing such tranche of Added Term Loans (defined below), to effectuate during the period commencing on the Closing Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions reasonably satisfactory to the Borrower and each Added Term Lender (as defined below), (B) shall rank pari passu in right of payment with the Revolving Credit Loans, (C) shall be treated substantially similar to the Revolving Credit Loans; provided that (i) the terms and conditions applicable to any tranche of Added Term Loans maturing after the Stated Termination Date may provide for material additional or different financial or other covenants applicable only during periods after the Stated Termination Date, (ii) the Added Term Loans may be priced differently than the Revolving Credit Loans (including without limitation in respect of the interest rate margins, upfront fees, original issue discount, any interest rate floors and any arrangement or commitment fees applicable to the Added Term Loans), (iii) the terms of any such Added Term Loan may provide for the inclusion, as appropriate, of Added Term Lenders in any required vote or action of the Required Lenders or of the Lenders of each tranche hereunder and may provide class protection for any additional credit facilities, and (iv) the prepayment provisions with respect to any Added Term Loans may differ from those applicable to the Revolving Credit Loans, (D) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000 and (E) shall have a final stated maturity date that is on or later than the Stated Termination Date and may provide for customary amortization; provided, further that (1) the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder, shall not exceed $2,300,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. Any Lender extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower; provided that in no event shall any such Lender be a natural person or the Borrower or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, any Added Term Loans the proceeds of which will be used to finance a Limited Condition Acquisition shall be subject to the provisions of Section 1.7.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) (A) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; andCommitment or extends Added Term Loans, as applicable and (B) in the case of Added Term Loans, an amendment to this Agreement to the extent necessary in order to effect such Added Term Loans, which amendment shall only be required to be signed by the Borrower, the Administrative Agent and each Added Term Lender to the extent that such amendment relates only to such Added Term Loans or affects only the Lenders providing such Added Term Loans;
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Revolving Credit Lender shall constitute a “Revolving Credit Lender” ”, each such Added Lender in respect of an Added Term Loan shall constitute an “Added Term Lender”, and each such Added Term Lender and Added Revolving Credit Lender shall constitute a “Lender”, in each case for all purposes under this Agreement and related documents and without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other such Increasing Revolving Credit Lender’s Revolving Percentage shall be adjusted to reflect the Added Revolving Credit Commitments and shall be specified in such revised Exhibit A, as the case may be. A. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, Revolving Credit Commitments and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 (other than the last paragraph of Section 11.6) to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to effectuate during the period commencing on the Closing Date and ending on the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons (other than a natural person or the Borrower or any of its Subsidiaries) acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder hereunder, plus the aggregate principal amount of all Added Term Loans hereunder, exceeding $781,582,051.612,300,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained the consents of any Lenders providing such tranche of Added Term Loans (defined below), to effectuate during the period commencing on the Closing Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions reasonably satisfactory to the Borrower and each Added Term Lender (as defined below), (B) shall rank pari passu in right of payment with the Revolving Credit Loans, (C) shall be treated substantially similar to the Revolving Credit Loans; provided that (i) the terms and conditions applicable to any tranche of Added Term Loans maturing after the Stated Termination Date may provide for material additional or different financial or other covenants applicable only during periods after the Stated Termination Date, (ii) the Added Term Loans may be priced differently than the Revolving Credit Loans (including without limitation in respect of the interest rate margins, upfront fees, original issue discount, any interest rate floors and any arrangement or commitment fees applicable to the Added Term Loans); provided that if the “effective yield” applicable to a given tranche of Added Term Loans (except any tranche of Added Term Loans the final stated maturity date for which is at least one (1) year later than the Stated Termination Date hereunder and the weighted average life to maturity of which is no shorter than one (1) year longer than the weighted average life to maturity applicable to the Revolving Credit Loans) (the determination of “effective yield” shall take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to all Lenders providing such Added Term Loans but shall exclude any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Added Term Loans) determined as of the initial funding date for such Added Term Loans exceeds the “effective yield” then applicable to the Revolving Credit Loans (determined on the same basis as provided in the preceding parenthetical, with the comparative determination to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than 0.75% (the amount of such excess being the “Yield Differential”), the Applicable Margin for such Revolving Credit Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Added Term Loans, (iii) the terms of any such Added Term Loan may provide for the inclusion, as appropriate, of Added Term Lenders in any required vote or action of the Required Lenders or of the Lenders of each tranche hereunder and may provide class protection for any additional credit facilities, and (iv) the prepayment provisions with respect to any Added Term Loans may differ from those applicable to the Revolving Credit Loans, (D) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000 and (E) shall have a final stated maturity date that is on or later than the Stated Termination Date and the weighted average life to maturity of such Added Term Loans shall be no shorter than the weighted average life to maturity applicable to the Revolving Credit Loans; provided, further that (1) the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder, shall not exceed $2,300,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. Any Lender extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower; provided that in no event shall any such Lender be a natural person or the Borrower or any of its Subsidiaries.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) (A) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; andCommitment or extends Added Term Loans, as applicable and (B) in the case of Added Term Loans, an amendment to this Agreement to the extent necessary in order to effect such Added Term Loans, which amendment shall only be required to be signed by the Borrower, the Administrative Agent and each Added Term Lender to the extent that such amendment relates only to such Added Term Loans or affects only the Lenders providing such Added Term Loans;
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Revolving Credit Lender shall constitute a “Revolving Credit Lender” ”, each such Added Lender in respect of an Added Term Loan shall constitute an “Added Term Lender”, and each such Added Term Lender and Added Revolving Credit Lender shall constitute a “Lender”, in each case for all purposes under this Agreement and related documents and without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other such Increasing Revolving Credit Lender’s Revolving Percentage shall be adjusted to reflect the Added Revolving Credit Commitments and shall be specified in such revised Exhibit A, as the case may be. A. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, Revolving Credit Commitments and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. (a) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to effectuate during the period commencing on the Closing Date and ending on the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e))Commitment, an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (Ai) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Lender to be effected under this Section 2.18 (collectively, the “Added Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (Bii) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder exceeding $781,582,051.61800,000,000, (Ciii) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (Div) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Commitment. The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment each of the following items with respect to each Added Lender and Increasing Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Lender, the proposed effective date for the increase in Extended Revolving Credit Commitments, the amounts of the Added Commitments of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Lender for the sole account of the Administrative Agent.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and upon delivery to the Administrative Agent by each Added Lender and Increasing Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Commitments) of Extended Revolving Credit Outstandings and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable (the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit Lender” for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended a Revolving Credit Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other Lender’s Revolving Percentage shall be adjusted to reflect the Added Commitments and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, and (ii) on the Increased Commitment Date, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Lender and Added Lender (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(c) This Section 2.18 shall supersede any provisions in Section 11.1 and 11.6 to the contrary.
Appears in 1 contract
Increased Amounts. (ai) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties, to effectuate, (i) prior to effectuate during the period commencing on the Closing Date and ending on the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Commitment under this Agreement in an aggregate amount not to exceed $200,000,000 and (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably acceptable to the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an a “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Revolving Credit Lender”), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Revolving Credit Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided that (A) the aggregate addition of or increase in the Extended Revolving Credit Commitment of any Revolving Credit Lender to be effected under this Section 2.18 (collectively, the “Added Revolving Credit Commitments”) shall be, other than increases pursuant to clause (ii) above, be in an amount not less than $5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000, (B) no increase in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder hereunder, plus the aggregate principal amount of all Added Term Loans hereunder, exceeding $781,582,051.612,300,000,000, (C) no Lender’s Extended Revolving Credit Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Revolving Credit Commitment.
(ii) The Borrower shall have the right from time to time, without the consent of the Lenders, subject to the terms of this Section 2.18 and provided that the Borrower has obtained the consents of any Lenders providing such tranche of Added Term Loans (defined below), to effectuate during the period commencing on the Closing Date the establishment of one or more tranches of new term loans (the “Added Term Loans”); provided that each tranche of Added Term Loans (A) shall have terms and conditions reasonably satisfactory to the Borrower and each Added Term Lender (as defined below), (B) shall rank pari passu in right of payment with the Revolving Credit Loans, (C) shall be treated substantially similar to the Revolving Credit Loans; provided that (i) the terms and conditions applicable to any tranche of Added Term Loans maturing after the Stated Termination Date may provide for material additional or different financial or other covenants applicable only during periods after the Stated Termination Date, (ii) the Added Term Loans may be priced differently than the Revolving Credit Loans (including without limitation in respect of the interest rate margins, upfront fees, original issue discount, any interest rate floors and any arrangement or commitment fees applicable to the Added Term Loans); provided that if the “effective yield” applicable to a given tranche of Added Term Loans (except any tranche of Added Term Loans the final stated maturity date for which is at least one (1) year later than the Stated Termination Date hereunder and the weighted average life to maturity of which is no shorter than one (1) year longer than the weighted average life to maturity applicable to the Revolving Credit Loans) (the determination of “effective yield” shall take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to all Lenders providing such Added Term Loans but shall exclude any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Added Term Loans) determined as of the initial funding date for such Added Term Loans exceeds the “effective yield” then applicable to the Revolving Credit Loans (determined on the same basis as provided in the preceding parenthetical, with the comparative determination to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than 0.50% (the amount of such excess being the “Yield Differential”), the Applicable Margin for such Revolving Credit Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Added Term Loans, (iii) the terms of any such Added Term Loan may provide for the inclusion, as appropriate, of Added Term Lenders in any required vote or action of the Required Lenders or of the Lenders of each tranche hereunder and may provide class protection for any additional credit facilities, and (iv) the prepayment provisions with respect to any Added Term Loans may differ from those applicable to the Revolving Credit Loans, (D) shall be in an aggregate principal amount that is not less than $50,000,000, and, if greater than $50,000,000, an integral multiple of $1,000,000 and (E) shall have a final stated maturity date that is on or later than the Stated Termination Date and the weighted average life to maturity of such Added Term Loans shall be no shorter than the weighted average life to maturity applicable to the Revolving Credit Loans; provided, further that (1) the aggregate principal amount of all Added Term Loans, plus the Total Revolving Credit Commitment hereunder, shall not exceed $2,300,000,000, (2) no Lender shall be obligated to provide all or any portion of any Added Term Loan under this Section 2.18 without the consent of such Lender, and (3) there shall not exist any Default or Event of Default immediately prior to and immediately after giving effect to any such Added Term Loans. Any Lender extending such Added Term Loans (each an “Added Term Lender”) shall be acceptable to the Borrower.
(b) The Borrower shall deliver or pay, as applicable, to the Administrative Agent not later than five (5) Business Days prior to any such increase in the Extended Total Revolving Credit Commitment or establishment of a new tranche of Added Term Loans, as applicable, each of the following items with respect to each Added Lender and Increasing Revolving Credit Lender:
(i) a written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment or establish a new tranche of Added Term Loans, as applicable, pursuant to this Section 2.18, which shall specify each Added Lender and Increasing Revolving Credit Lender, the proposed effective date for the increase in Extended Revolving Credit CommitmentsCommitments or the new tranche of Added Term Loans, as applicable, the amounts of the Added Revolving Credit Commitments or the Added Term Loans, as applicable, of each such Lender that will result (which amounts shall be subject to confirmation by the Administrative Agent), and such other information as is reasonably requested by the Administrative Agent;
(ii) (A) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Revolving Credit Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; andCommitment or extends Added Term Loans, as applicable and (B) in the case of Added Term Loans, an amendment to this Agreement to the extent necessary in order to effect such Added Term Loans, which amendment shall only be required to be signed by the Borrower, the Administrative Agent and each Added Term Lender to the extent that such amendment relates only to such Added Term Loans or affects only the Lenders providing such Added Term Loans;
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Revolving Credit Lender for the sole account of the Administrative Agent.
(bc) Upon receipt of any notice referred to in clause (a)(ib) above, the Administrative Agent shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which shall be deemed effective as of the Increased Commitment Date referred to below and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and (i) upon delivery to the Administrative Agent (1) in the case of an increase of the Revolving Credit Commitments, by each Added Revolving Credit Lender and Increasing Revolving Credit Lender for further delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Revolving Credit Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) of Extended Revolving Credit Outstandings Outstandings, and funded Participations and, for each Increasing Lender, the product of the increase in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Revolving Credit Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable or (2) in the case of the Added Term Loans, by each Added Term Lender for further delivery to the Borrower of immediately available, freely transferable funds in an amount equal to such Added Term Loans being made by such Added Term Lender (in each case, the “Increased Commitment Date”), (x) each such Added Revolving Credit Lender shall constitute a “Revolving Credit Lender” ”, each such Added Lender in respect of an Added Term Loan shall constitute an “Added Term Lender”, and each such Added Term Lender and Added Revolving Credit Lender shall constitute a “Lender”, in each case for all purposes under this Agreement and related documents and without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit a Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Revolving Credit Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents and revised Exhibit A, and each other such Increasing Revolving Credit Lender’s Revolving Percentage shall be adjusted to reflect the Added Revolving Credit Commitments and shall be specified in such revised Exhibit A, as the case may be. A. As of the Increased Commitment Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as appropriate to correspond to such Added Commitments, Revolving Credit Commitments and (ii) on the Increased Commitment DateDate with respect to Revolving Credit Commitments, to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Revolving Credit Commitments under this Section 2.18, all Interest Periods then outstanding shall be deemed to be terminated without further action or consent of the Borrower and the Borrower shall pay any additional amounts required pursuant to Section 4.5 in connection therewith). In addition, with respect to increases of the Revolving Credit Commitments, if there are at such time outstanding any Extended Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Revolving Credit Lender and Increasing Revolving Credit Lender such portion of such Lender’s Extended Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Revolving Percentages. Each Increasing Revolving Credit Lender and Added Revolving Credit Lender with respect to increases of the Revolving Credit Commitments, (i) shall be deemed to have assumed such portion of such Extended Revolving Credit Outstandings and funded Participations and (ii) shall fund to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit Outstandings.
(cd) This Section 2.18 shall supersede any provisions in Section Sections 11.1 and 11.6 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Increased Amounts. (a) The Borrower shall have the right from time to timetime after the Closing Date and, without with respect to any Additional Revolving Commitment, prior to the Revolving Loan Maturity Date, and, with respect to any Additional Term Loan, the Term Loan Maturity Date, with the consent of the Lenders, Administrative Agent and subject to the terms of this Section 2.18 and provided that the Borrower has obtained any required consents of third parties2.23, to effectuate, elect the establishment of (i) prior to the date of any voluntary reduction of the Extended Total Revolving Credit Commitment (other than any reduction pursuant to Section 4.8(e)), an increase in the Extended Total Revolving Credit Loan Commitment under this Agreement in (the "ADDITIONAL REVOLVING COMMITMENT", and any Loan made pursuant to such Additional Revolving Commitment, an aggregate amount not to exceed $200,000,000 and "ADDITIONAL REVOLVING LOAN") and/or (ii) in addition to any increases pursuant to clause (i), from and after the date on which the Borrower takes any action pursuant to Section 4.8(e), an increase in the Extended Total Revolving Credit Commitment in the amount equal to or less than (in the discretion of the Borrower) the amount of such terminated Revolving Credit Commitment of such Defaulting Lender, in each case, by adding to this Agreement one or more Persons acceptable tranches of additional CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT term loans (the "ADDITIONAL TERM LOANS", and a commitment to make an Additional Term Loan, an "ADDITIONAL TERM COMMITMENT" and together with the Borrower and reasonably acceptable to Additional Revolving Commitment, the Administrative Agent, who shall, upon completion of the requirements of this Section 2.18, constitute an “Extended Revolving Credit Lender” or “Extended Revolving Credit Lenders” hereunder (each an “Added Lender”"ADDITIONAL COMMITMENTS"), or by allowing one or more Extended Revolving Credit Lenders in their sole discretion to increase their respective Extended Revolving Credit Commitments hereunder (each an “Increasing Lender”), so that such increased Extended Revolving Credit Commitments shall equal the aggregate increase in the Extended Total Revolving Credit Commitment effectuated pursuant to this Section 2.18; provided PROVIDED that (A) the aggregate addition principal amount of the Additional Commitments shall not exceed $100,000,000, (B) each Borrowing of Additional Revolving Loans or increase in the Extended Revolving Credit Commitment of any Lender to be effected under this Section 2.18 Additional Term Loans (collectively, the “Added Commitments”"ADDITIONAL LOANS") shall be, other than increases pursuant to clause (ii) above, be in an aggregate minimum amount not less than of $5,000,000, and, if greater than $5,000,000, an 500,000 or any integral multiple of $1,000,000, (B) no increase 500,000 in or added Extended Revolving Credit Commitments pursuant to this Section 2.18 shall result in the sum of the Extended Total Revolving Credit Commitment hereunder exceeding $781,582,051.61excess thereof, (C) no Lender’s Extended Revolving Credit 's Commitment shall be increased under this Section 2.18 without the consent of such Lender, and (D) there the conditions precedent set forth in Section 4.2 shall not exist any Default or Event of Default immediately prior to and immediately have been satisfied, (E) after giving pro forma effect to any such Added Commitment. The the Additional Loans, the Borrower shall be in compliance with each of the covenants contained in Section 7.1, and (F) the Borrower shall deliver or pay, as applicable, caused to be delivered any documents reasonably requested by the Administrative Agent in connection with the transaction.
(b) Borrower shall give the Administrative Agent not later less than five (5) 10 Business Days prior to any such increase in the Extended Total Revolving Credit Commitment each of the following items with respect to each Added Lender and Increasing Lender:
(i) a advance written notice of Borrower’s intention to increase the Extended Total Revolving Credit Commitment its election pursuant to this Section 2.182.23, which notice shall specify each Added Lender and Increasing Lenderthe amount of the requested increase, whether the Borrower requests an Additional Term Commitment or an Additional Revolving Commitment, the proposed requested effective date for of the increase in Extended Additional Revolving Credit CommitmentsCommitment(s) and/or Additional Term Loan(s) (the "INCREASE EFFECTIVE DATE"), the amounts of time period within which each applicable existing Lender is requested to respond, the Added names and proposed Commitments of each such Lender that will result (which amounts shall be subject to confirmation by Lender, including new lenders providing the Administrative Agent)Additional Commitments, and such other information as is reasonably requested by the Administrative Agent;
(ii) documents in the form of Exhibit K or Exhibit L, as may be required by the Administrative Agent, executed and delivered by each Added Lender and each Increasing Lender, pursuant to which it becomes a party hereto or increases its Extended Revolving Credit Commitment; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or Increasing Lender for the sole account of the Administrative Agent.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the Agent reasonably requests. The Administrative Agent shall promptly notify each Term Loan Lender, in the case of an Additional Term Commitment, and each Revolving Lender, in the case of an Additional Revolving Commitment, of such notice and of the proposed terms and conditions of the Additional Commitments agreed between the Borrower and the Administrative Agent. Each such Lender thereof and shall distribute notify the Administrative Agent within the specified time period whether or not it agrees to make an amended Exhibit A (which Additional Commitment. Any Lender not responding within such time period shall be deemed effective as to have declined to make an Additional Commitment. No Additional Commitment shall require the approval or consent of any Lender other than the Increased Lender making such Additional Term Loan or an Additional Revolving Commitment.
(c) Each Lender agreeing to make an Additional Commitment Date referred to below shall execute and thereupon incorporated into this Agreement) to reflect any changes therein resulting from such increase. Upon execution and delivery of the documents and the payment of the fee as described above, and upon delivery deliver to the Administrative Agent by each Added Lender and Increasing Lender for further delivery an agreement substantially in the form of Exhibit L attached hereto (an "ADDITIONAL COMMITMENT AGREEMENT"). Upon receipt of such Additional Commitment Agreement, if the Administrative Agent consents to the Borrower or other Revolving Credit Lenders proposed Additional Commitment and/or Additional Loan, (i) such Additional Commitment and/or Additional Loan shall become effective, (ii) any new Lender making an Additional Commitment and/or Additional Loan shall be deemed to be a party in all respects to this Agreement as applicable) of immediately available, freely transferable funds in an amount equal to, for each Added Lender, such Added Lender’s Revolving Percentage (after giving effect to all Added Commitments) of Extended Revolving Credit Outstandings and funded Participations and, for each Increasing Lender, the product of the increase date of the Additional Commitment Agreement, with its Commitment as set forth in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Commitments) multiplied by the sum of Extended Revolving Credit Outstandings and funded Participations, as applicable (the “Increased Additional Commitment Date”)Agreement, (xiii) each such Added the Revolving Loan Commitment of an existing Lender shall constitute a “making an Additional Revolving Credit Lender” for all purposes under this Agreement and related documents without any acknowledgment by or the consent of the other Lenders, with an Extended Revolving Credit Commitment as specified in such documents and revised Exhibit A, (y) each such Increasing Lender’s Extended Revolving Credit Commitment shall increase as specified in such documents the Additional Commitment Agreement and revised Exhibit A, and each other Lender’s Revolving Percentage shall be adjusted to reflect the Added Commitments and shall be specified in such revised Exhibit A, as the case may be. As of the Increased Commitment Date, (iiv) the respective Revolving Percentages of Administrative Agent shall record the Lenders shall be deemed modified as appropriate to correspond applicable CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT information with respect to such Added Commitments, and (ii) on Additional Commitment and/or Additional Loan in the Increased Commitment Date, Register. If the Administrative Agent does not consent to the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages arising from any Added Commitments under this Section 2.18proposed Additional Commitment and/or Additional Loan, all Interest Periods then outstanding such Additional Commitment and/or Additional Loan shall not be effective.
(d) An Additional Term Commitment shall be deemed to be terminated without further action or consent of a Term Loan Commitment under this Agreement. Additional Term Loans (i) shall rank pari passu in all respects to the Borrower and the Borrower shall pay any additional amounts required Term Loans made pursuant to Section 4.5 in connection therewith). In addition2.1, if there (ii) for purposes of prepayments, shall be treated the same as the Term Loans and (iii) shall have terms and conditions that are at such time outstanding any Extended substantially similar to those applicable to the Term Loans.
(e) An Additional Revolving Credit Outstandings and funded Participations, each Extended Revolving Credit Lender whose Revolving Percentage has been decreased as a result of the increase in the Extended Total Revolving Credit Commitment shall be deemed to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such Lender’s Extended be a Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate such adjustment in Loan Commitment under this Agreement. Additional Revolving Percentages. Each Increasing Lender and Added Lender Loans (i) shall be deemed rank pari passu in all respects to have assumed such portion of such Extended the Revolving Credit Outstandings and funded Participations and Loans made pursuant to Section 2.2, (ii) for purposes of prepayments, shall fund be treated the same as the Revolving Loans and (iii) shall have terms and conditions that are substantially similar to each other Extended Revolving Credit Lender on the Increased Commitment Date the amount of Extended Revolving Credit Outstandings and funded Participations assigned to it by such Lender. The Borrower agrees to pay those applicable to the Extended Revolving Credit Lenders on demand any and all amounts required pursuant to Section 4.5 resulting from any such assignment of Extended Revolving Credit OutstandingsLoans.
(c) This Section 2.18 shall supersede any provisions in Section 11.1 and 11.6 to the contrary.
Appears in 1 contract
