Increases in Aggregate Commitment. (i) Subject to the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, make a request (a “Facility Increase Request”), by notice to the Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 2 contracts

Samples: Credit Agreement (Ryland Group Inc), Credit Agreement (Ryland Group Inc)

Increases in Aggregate Commitment. ~~(i) Subject to the provisions of this Section 2.5.3~~So long as no Default or Unmatured Default exists or would result therefrom, ~~the~~ Borrower may, ~~at any time and~~ from time to time, ~~make~~ by means of a ~~request (a “Facility Increase Request”), by notice~~ letter delivered to the Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit ~~C hereto~~F, and acknowledged by Guarantor, request that the ~~Agent shall have accepted and executed the same;~~ Aggregate Commitment be increased to up to $330,000,000 (~~F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in~~ less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender~~’s Commitment or increased Commitment~~ ; provided that no Additional Lender shall be added as a party hereto without the written consent of the Administrative Agent (~~as applicable~~which shall not be unreasonably withheld)~~; (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the~~ . Any increase in the Aggregate Commitment ~~and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each~~ pursuant to this Section 2.23 shall, subject to the satisfaction of the ~~Guarantors shall have consented~~ conditions precedent referred to below, be effective three Business Days after the date on which the Administrative Agent has received and accepted the applicable increase letter in ~~writing~~ the form of Annex 1 to Exhibit F (in the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or case of an increase in the Commitment of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (~~as applicable~~in the case of the addition of an Additional Lender). The ~~form and substance~~ effectiveness of each such increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent shall have received each of the ~~documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders~~ following ~~any such increase in the Aggregate Commitment. (ii) On~~ documents, each dated the effective date of such increase (or such other date as shall be reasonably acceptable to the Administrative Agent): (a) certified copies of resolutions of the board of directors of Borrower approving such increase to the Aggregate Commitment, in form and substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in form and substance reasonably acceptable to the Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of the effectiveness of any increase in the amount of the Aggregate Commitment pursuant to this Section 2.23 and of the Commitment of each Lender after giving effect thereto. Borrower acknowledges that, in order to maintain Advances in accordance with each Lender’s pro rata share of all outstanding Advances prior to any increase in the Aggregate Commitment pursuant to ~~the provisions hereof (“Increase Date”)~~this Section 2.23, ~~which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make~~ a ~~payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction~~ reallocation of the ~~outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be~~ Commitments as a result of a non-pro-rata increase in the ~~proportion~~ Aggregate Commitment may require prepayment of ~~their respective Commitments (as~~ all or portions of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance certain Advances on the date of ~~the conversion or continuation thereof~~ such increase (and ~~then~~ any such prepayment shall be subject to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of ~~the first sentence of~~ Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased3.4). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 2 contracts

Samples: Credit Agreement (Vectren Corp), Credit Agreement (Vectren Corp)

Increases in Aggregate Commitment. (i) Subject to the ~~provisions of this Section 2.5.3~~conditions set forth below, the Borrower may, upon at ~~any~~ least ten (10) days (or such other period of time agreed to between the Agent and the Borrower) prior written notice to the Agent and the Lenders, increase the Aggregate Commitments from time to time, ~~make~~ either by designating a ~~request~~ lender not theretofore a Lender to become a Lender (~~a “Facility Increase Request”), by notice~~ such designation to be effective only with the ~~Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of~~ prior written consent (such ~~requested increase. Within twenty (20~~consent not to be unreasonably withheld) ~~days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval~~ of the Agent, ) or by agreeing with an existing Lender that such Lender's Commitment shall be increased (thus increasing the Aggregate ~~Commitment may be so increased either by having one or more financial institutions~~ Commitments); provided that: (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1a) no Default or Unmatured Default shall ~~then exist nor would occur immediately after giving effect to~~ have occurred and be continuing hereunder as of the effective date of such ~~increase and~~ increase; (2b) the representations and warranties made by the Borrower and contained in Article V ~~and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty~~ hereof shall ~~have been~~ be true and correct on and as of the effective date with the same effect as if made on and as of such ~~earlier~~ date (other than those representations and warranties that by their terms speak as of a particular date, ~~(B) unless otherwise agreed by the Borrower~~ which representations and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender warranties shall be ~~not less than $5,000,000~~ true and correct as of such particular date); (~~and, if in excess thereof, in integral multiples of $1,000,000); (D~~c) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitments shall not be greater than $50,000,000, and shall not cause the Aggregate Commitments to exceed $150,000,000; (d) The Borrower and the Lender or lender not theretofore a Lender, shall execute and deliver to the Agent, a Lender Addition and Acknowledgement Agreement, in form and substance satisfactory to the Agent and acknowledged by the Agent and each Borrower; (e) no existing Lender shall be obligated in any way to increase its Commitment; (f) the Agent shall consent to such increase and the Borrower shall have complied with such other conditions in connection with such increase as may be required by the Agent. (ii) On Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date ~~of any increase~~ specified in ~~the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”)~~a Lender Addition and Acknowledgement Agreement, ~~which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional~~ such existing Lender shall ~~make~~ have a ~~payment to the Agent in an amount sufficient, upon the application of~~ Commitment as therein set forth or such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional other Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof become a Lender with a Commitment as therein set forth and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all ~~Advances made on or after such Increase Date and shall otherwise have all of~~ the rights and obligations of a Lender ~~hereunder on and after~~ with such ~~Increase Date. Notwithstanding the foregoing, upon the occurrence of~~ a ~~Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances~~ Commitment hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) ~~On the Increase Date~~ Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any Note or Notes, if requested, subject to such addition and assumption and the ~~making of~~ written consent to such addition and assumption, the ~~Loans by an Additional~~ Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in ~~accordance with~~ this Section 2.23 have been satisfied: (a) accept such Lender Addition and Acknowledgement Agreement; (b) record the ~~provisions of~~ information contained therein in the ~~first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed~~ Register; and (c) give prompt notice thereof to ~~have irrevocably and unconditionally purchased and received, without recourse or warranty, from~~ the Lenders ~~party to this Agreement immediately prior~~ and the Borrower and deliver to the ~~Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all~~ Lenders ~~(including each Additional Lender) hold participation interests in each such Facility LC in~~ a schedule reflecting the ~~proportion of their respective Commitments (as so increased)~~new Commitments. (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: Credit Agreement (Tecumseh Products Co)

Increases in Aggregate Commitment. (i) Subject to the provisions of this Section ~~2.5.3~~2.5(d)(i) and Section 2.5(d)(v), ~~the~~ Borrower may, at any time and from time to time, ~~make a~~ request (a “Facility Increase Request”), by notice to ~~the~~ Administrative Agent, ~~for the~~ Administrative Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of ~~the~~ Administrative Agent, the Aggregate Commitment may be so increased either by having ~~one or more~~ financial institutions (other than ~~the~~ Lenders then holding a Commitment hereunder) approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent (~~each, a~~ “New ~~Lender~~Lenders”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an a “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the Commitment of any New Lender shall not be less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000), (CB) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the increase in the Commitment of any Lender shall be not less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000); (DC) ~~after giving effect to such increase,~~ the Aggregate Commitment shall not exceed $~~1,500,000,000~~1,750,000,000; (ED) ~~the~~ Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and ~~the~~ Administrative Agent shall have accepted and executed the same; (FE) ~~the~~ Borrower shall have executed and delivered to ~~the~~ Administrative Agent a Note or Notes payable to the order of each Additional ~~Lender that requests a Note~~Lender, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (GF) ~~the~~ Borrower shall have delivered to ~~the~~ Administrative Agent ~~opinions~~ an opinion of counsel and certificate of Borrower’s general counsel (substantially similar to the forms of opinion ~~referred to in Section 4.1(v)~~attached hereto as Exhibit E, modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (HG) ~~each of the~~ Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that ~~its Guaranty continues~~ their Guaranties continue in full force and effect; and (IH) ~~the~~ Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as ~~the~~ Administrative Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (ED) through (IH) above shall be fully acceptable to ~~the~~ Administrative Agent. ~~The~~ Administrative Agent shall promptly provide written notice to ~~the~~ Lenders following any such increase in the Aggregate ~~Commitment~~Commitment hereunder and shall promptly furnish to Lenders copies of the documents required under clauses (D), (F), (G) and (H) above. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and ~~the~~ Administrative Agent, each Additional Lender shall make a payment to ~~the~~ Administrative Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by ~~the~~ Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). ~~The~~ Borrower hereby irrevocably authorizes each Additional Lender to fund to ~~the~~ Administrative Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any ~~Eurodollar Advance~~ LIBOR Advances that are outstanding on the Increase Date, but, if ~~the~~ Borrower shall at any time on or after such Increase Date convert or continue any ~~Eurodollar~~ LIBOR Advance outstanding on such Increase Date, ~~the~~ Borrower shall be deemed to repay such ~~Eurodollar~~ LIBOR Advance on the date of the conversion or continuation thereof and then to reborrow as a ~~Eurodollar~~ LIBOR Advance a like amount on such date so that each Additional Lender shall make a ~~Eurodollar~~ LIBOR Loan on such date in its ~~Pro Rata Share~~ pro rata share of such ~~Eurodollar~~ LIBOR Advance. Each Additional Lender shall also make a ~~Revolving~~ Loan in the amount of its ~~Pro Rata Share~~ pro rata share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a an Event of Default prior to the date on which an Additional Lender is holding ~~Revolving~~ Loans equal to its ~~Pro Rata Share~~ pro rata share of all Advances hereunder, such Additional Lender shall, upon notice from ~~the~~ Administrative Agent, on or after the date on which the Obligations are accelerated or become due following such Event of Default, pay to ~~the~~ Administrative Agent (for the account of the other Lenders, to which ~~the~~ Administrative Agent shall pay their ~~Pro Rata Shares~~ pro rata shares upon receipt) a sum equal to such Additional Lender’s ~~Pro Rata Share~~ pro rata share of each Advance then outstanding with respect to which such Additional Lender does not then hold a ~~Revolving~~ Loan equal to its ~~Pro Rata Share~~ pro rata share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section ~~2.5.3(ii~~2.5(d)(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from ~~the~~ Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC Letter of Credit then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC Letter of Credit in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of ~~the~~ Borrower or ~~the~~ Administrative Agent to give or grant any Lender the right to increase its Commitment hereunder at any time. (v) Notwithstanding anything to the contrary contained herein, Borrower may not request an increase in the Aggregate Commitment during the Term Out Period, and, if Borrower has requested an increase in the Aggregate Commitment prior to the Term Out Period but the Term Out Period commences prior to the effective date of such increase, such increase shall not take effect. Notwithstanding anything to the contrary contained herein, no increase of the Aggregate Commitment may be effected under this Section 2.5(d) if (x) an Unmatured Event of Default or Event of Default shall be in existence on the effective date of such increase or would occur after giving effect thereto or (y) any representation or warranty made or deemed made by Borrower in any Loan Document or any Guarantor in any Guaranty is not (or would not be) true or correct in any material respect on the effective date of such increase (except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date).

Appears in 1 contract

Samples: Credit Agreement (MDC Holdings Inc)

Increases in Aggregate Commitment. (i) Subject to the provisions of ~~this~~ Section ~~2.5.3~~2.5(d)(v), ~~the~~ Borrower may, at any time and from time to time, ~~make a~~ request (~~a “~~"Facility Increase Request”"), by notice to ~~the~~ Administrative Agent, ~~for the~~ Administrative Agent’s 's approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of ~~the~~ Administrative Agent, the Aggregate Commitment may be so increased either by having ~~one or more~~ financial institutions (other than ~~the Lenders~~ Banks then holding a Commitment hereunder) approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent (~~each, a “~~"New ~~Lender”~~Banks") become ~~Lenders~~ Banks hereunder and/or by having any one or more of ~~Lenders~~ Banks then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent increase the amount of their Commitments (any such ~~Lender~~ Bank that elects to increase its Commitment and any New ~~Lender~~ Bank being hereinafter referred to as ~~an “~~a "Additional ~~Lender”~~Bank"), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the Commitment of any New ~~Lender~~ Bank shall not be less than $~~5,000,000~~ 25,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000), (CB) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the increase in the Commitment of any ~~Lender~~ Bank shall be not less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000); (DC) ~~after giving effect to such increase,~~ the Aggregate Commitment shall not exceed $~~1,500,000,000~~450,000,000; (ED) ~~the~~ Borrower and each Additional ~~Lender~~ Bank shall have executed and delivered a commitment and acceptance (the “"Commitment and Acceptance”") substantially in the form of Exhibit C hereto, and ~~the~~ Administrative Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.;

Appears in 1 contract

Samples: Credit Agreement (MDC Holdings Inc)

Increases in Aggregate Commitment. (i) ~~Subject to the provisions of this Section 2.5.3, the~~ The Borrower may, at any time and from time to time, ~~make a request (a “Facility Increase Request”),~~ by notice to the Agent, ~~for the Agent’s approval of~~ request an increase of in the Aggregate Commitment within the limitations ~~hereinafter set forth~~hereafter described, which ~~Facility Increase Request~~ notice shall set forth the amount of such ~~requested~~ increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the The Aggregate Commitment may be so increased either by having one or more ~~financial institutions (other than the~~ New Lenders ~~then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”)~~ become Lenders ~~hereunder~~ and/or by having any one or more of the then existing Lenders ~~then holding a Commitment hereunder~~ (at their respective election in their sole discretion) that have been approved ~~in writing~~ by the Borrower and the Agent (any such Lender or any New Lender being herein referred to as an "Additional Lender") increase the amount of their ~~Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”)~~Commitments, provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (Ba) unless otherwise ~~agreed~~ approved by ~~the Borrower and~~ the Agent, the Commitment of any New Lender shall ~~not~~ be ~~less than $5,000,000 (and, if~~ in ~~excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be~~ an amount not less than $5,000,000 (and, if in excess thereof, in an integral ~~multiples~~ multiple of $1,000,000); (Db) ~~after giving effect to such increase~~unless otherwise approved by the Agent, any single increase in the Aggregate Commitment shall be in an aggregate amount of not less than $5,000,000 (and, if in excess thereof, in an integral multiple of $1,000,000); and (c) the Aggregate Commitment shall not exceed $~~1,500,000,000;~~ 125,000,000. (Eii) As a condition to any increase in the Aggregate Commitment, (a) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “"Commitment and Acceptance”") substantially in the form of Exhibit C J hereto, and the Agent shall have accepted and executed the same; (Fb) if requested by an Additional Lender, the Borrower shall have executed and delivered to the Agent a Ratable Note and/or Competitive Bid Note payable to the order of ~~each Additional Lender that requests a Note, each such Note to be in the amount of~~ such Additional Lender~~’s Commitment or increased Commitment (as applicable)~~; (Gc) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the ~~new Commitments or increases~~ increase in ~~Commitments (as applicable)~~ the Aggregate Commitment and shall have ~~agreed that its Guaranty continues in full force and effect~~reaffirmed their Guaranties; ~~and~~ (Id) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such ~~new Commitment or~~ increase in the Aggregate Commitment; and (e) the Borrower shall have delivered to the Agent an opinion of counsel (substantially similar to the form of opinion provided for in Section 4.1.9, modified to apply to the increase in the Aggregate Commitment ~~(as applicable~~and to each Note, Commitment and Acceptance, consent of Guarantors, and other documents executed and delivered in connection with such increase in the Aggregate Commitment). The form and substance of the documents required under clauses (Ea) through (Ie) above shall be fully acceptable to the Agent. The Agent shall ~~promptly~~ provide written notice to all of the Lenders ~~following~~ hereunder of any ~~such~~ increase in the Aggregate ~~Commitment~~Commitment hereunder and shall furnish to any Lender copies of the documents required under clauses (a) through (e) above. (iiiii) On Upon the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“the "Increase Date”"), which Increase Date shall be mutually agreed upon by the Borrower, each Additional Lender and the Agent, each Lender that is not an Additional Lender ("Selling Lender") hereby sells, grants, assigns and conveys to each Additional Lender, without recourse, warranty, or representation of any kind, except as specifically provided herein, an undivided percentage in such Selling Lender's right, title and interest in and to its outstanding Ratable Loans and participations in Facility LCs in the respective dollar amounts and percentages necessary so that, from and after such sale, each such Selling Lender's outstanding Ratable Loans shall ~~make a payment to the Agent in an amount sufficient,~~ equal such Selling Lender's Pro Rata Share (calculated based upon the ~~application of such payments by all Additional Lenders to the reduction~~ Increased Aggregate Commitment) of the outstanding ~~ABR Advances held by the Lenders, to cause the principal amount outstanding~~ Ratable Loans under ~~the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of~~ this Agreement and such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Selling Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a ~~Revolving Loan~~ participation interest in each Facility LC equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to . Effective on the Increase Date, ~~an undivided interest~~ each Additional Lender hereby purchases and ~~participation~~ accepts such grant, assignment and conveyance from the Selling Lenders. Each Additional Lender hereby agrees that its respective purchase price for the portion of the outstanding Ratable Loans and participations in ~~any~~ Facility ~~LC then outstanding~~LCs purchased hereby shall equal the respective dollar amount necessary so that, ~~ratably~~from and after such payments, ~~such that all Lenders (including~~ each Additional Lender's outstanding Ratable Loans shall equal such Additional Lender's Pro Rata Share (calculated based upon the increased Aggregate Commitment) ~~hold participation~~ of the outstanding Ratable Loans; no additional purchase price shall be payable in respect of the participations in Facility LCs granted, assigned and conveyed hereunder. The purchase price in respect of the interests in Ratable Loans granted, assigned and conveyed hereunder shall be payable as follows: (a) with respect to all Floating Rate Loans, on the Increase Date by wire transfer of immediately available funds to the Agent and (b) with respect to all Eurodollar Ratable Loans, unless otherwise agreed to among the Additional Lenders, the Selling Lenders, the Borrower and the Agent, on the earlier of (i) the last day of the then current Interest Period by wire transfer of immediately available funds to the Agent and (ii) the date on which any such Eurodollar Ratable Loan either becomes due (by acceleration or otherwise) or is prepaid (such earlier date being hereinafter referred to as the "Settlement Date") and, for purposes of calculating interest due and payable with respect to the Eurodollar Ratable Loans, the Lenders' Pro Rata Shares of each such outstanding Eurodollar Ratable Loan shall not be adjusted by virtue of the applicable increase until such Settlement Date. The Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby represents and warrants to each Additional Lender that such Selling Lender owns the Ratable Loans and participations in Facility LC LCs being sold and assigned hereby for its own account and has not sold, transferred or encumbered any or all of its interest in such Ratable Loans, except for participations which will be extinguished upon payment to such Selling Lender of an amount equal to the portion of the outstanding Ratable Loans being sold by such Selling Lender. Each Additional Lender hereby acknowledges and agrees that, except for each Selling Lender's representations and warranties contained in the ~~proportion~~ foregoing sentence, each such Additional Lender has entered into its Commitment and Acceptance with respect to such increase on the basis of ~~their respective Commitments (~~its own independent investigation and has not relied upon, and will not rely upon, any explicit or implicit written or oral representation, warranty or other statement of the Lenders or the Agent concerning the authorization, execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents. The Borrower hereby agrees to compensate each Selling Lender for all losses, expenses and liabilities incurred by each Lender in connection with the sale and assignment of any Eurodollar Ratable Loan hereunder on the terms and in the manner as ~~so increased)~~set forth in Section 3.4. (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: Credit Agreement (Sun Communities Inc)

Increases in Aggregate Commitment. (a) During the period from and after the Closing Date to the Termination Date, the Borrower shall have the right to request that the Aggregate Commitment be increased to an amount not to exceed $250,000,000; provided, however, that (i) ~~Subject~~ Foreign Currency Loans shall not exceed a Dollar Equivalent at any one time outstanding equal to 20% of such increased Aggregate Commitment, (ii) the Borrower may exercise such right not more than once every six (6) months during such period, and (iii) the Borrower may reduce the Aggregate Commitment pursuant to Section 2.7.1 hereof and then increase the Aggregate Commitment pursuant to the ~~provisions~~ terms of this Section ~~2.5.3,~~ 2.17 not more than three (3) times during such period and thereafter any reductions in the ~~Borrower may, at any time and from time to time, make a request (a “Facility Increase Request”), by notice to the Agent, for the Agent’s approval of an~~ Aggregate Commitment shall be permanent. Any such increase of the Aggregate Commitment ~~within the limitations hereinafter set forth, which Facility Increase Request~~ shall ~~set forth the~~ be in a minimum amount of ~~such requested increase. Within twenty~~ $25,000,000 (~~20) days~~ and multiples of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 ~~(and,~~ if in excess thereof~~, in integral multiples of $1,000,000~~), . (Cb) ~~unless otherwise agreed by~~ In the ~~Borrower and the Agent, the increase in the Commitment~~ event of any ~~Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to~~ such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the requested increase in the Aggregate ~~Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith);~~ Commitment, (Hi) each of the ~~Guarantors~~ Lenders shall ~~have consented~~ be given the opportunity to participate in ~~writing~~ the increased Aggregate Commitment (x) initially ratably in the proportions that their respective Commitments bear to the ~~new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect;~~ Aggregate Commitment and (Iy) to the ~~Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as~~ extent that the ~~Agent shall have reasonably~~ requested ~~in connection with such new~~ increase of the Aggregate Commitment ~~or increase~~ is not fulfilled pursuant to the preceding clause (x), ratably in the ~~Commitment (as applicable). The form and substance~~ proportion that the respective Commitments of the ~~documents required under clauses (E) through (I) above shall be fully acceptable~~ Lenders desiring to ~~the Agent. The Agent shall promptly provide written notice to the Lenders following~~ participate in any such increase bear to the total Commitments of the Lenders desiring to so participate, and (ii) to the extent that the Lenders do not elect so to participate in such increased Aggregate Commitment to the full extent thereof after being afforded an opportunity to do so, then the Borrower shall consult with the Agent as to the number, identity and requested Commitments of additional financial institutions which the Borrower may invite to participate in the Aggregate Commitment. (c) No Lender shall at any time have any obligation to increase its Commitment pursuant to a request by the Borrower under this Section 2.17. (d) In no event shall any Lender's Commitment, immediately after giving effect to any increase pursuant to this Section 2.17, exceed 33% of the increased Aggregate Commitment. (e) Any increase in the Aggregate Commitment pursuant to this Section 2.17 shall be effective only upon the execution and delivery to the Borrower and the Agent of a commitment increase letter in substantially the form of Exhibit "I" hereto (a "Commitment Increase Letter"), which Commitment Increase Letter shall be delivered to the Agent not less than five Business Days prior to the date of any such increase and shall specify (i) the amount of the Commitment of any other financial institution becoming a Lender party to this Agreement or of any increase in the amount of the Commitment of any Lender already party to this Agreement and (ii) On the date such increase is to become effective ~~date of~~ (the "Commitment Increase Date"). (f) In addition, any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender this Section 2.17 shall not ~~participate in any Eurodollar Advance outstanding~~ become effective unless: (i) on the ~~Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such~~ Commitment Increase Date, the Borrower's Long Term Debt Rating from Standard & Poor's is at least A- or better or at least A3 or better from Xxxxx'x; (ii) no Default or Unmatured Default shall have occurred and be continuing on the Commitment Increase Date; (iii) each of the representations and warranties set forth in Article V of this Agreement shall be true, correct and complete on the Commitment Increase Date as if made on and as of such date, except as such representations and warranties by their terms are made solely as of a prior date; and (iv) the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay furnished to the Agent (with sufficient copies for ~~the account~~ each of the ~~other~~ Lenders~~, to which the Agent shall pay their Pro Rata Shares upon receipt~~) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making certificate of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse Secretary or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part Assistant Secretary of the Borrower or as to the taking of any corporate action necessary in connection with any such increase and any other documents (including legal opinions and certificates) as the Agent ~~to give or grant~~ may reasonably request in connection with any ~~Lender the right to increase its Commitment hereunder at any time~~such increase.

Appears in 1 contract

Samples: Credit Agreement (Jostens Inc)

Increases in Aggregate Commitment. ~~(i) Subject to the provisions of this Section 2.5.3~~So long as no Default or Unmatured Default exists or would result therefrom, ~~the~~ Borrower may, ~~at any time and~~ from time to time, ~~make~~ by means of a ~~request (a “Facility Increase Request”), by notice~~ letter delivered to the Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit ~~C hereto~~F, and acknowledged by Guarantor, request that the ~~Agent shall have accepted and executed the same;~~ Aggregate Commitment be increased to up to $200,000,000 (~~F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in~~ less the amount of any previous reductions of the Aggregate Commitment pursuant to Section 2.5 above) by (a) increasing the Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each, an “Additional Lender”) with a Commitment in an amount agreed to by any such Additional Lender~~’s Commitment or increased Commitment (as applicable)~~; (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed provided that ~~its Guaranty continues in full force and effect; and (I) the Borrower and each~~ no Additional Lender shall ~~otherwise have executed and delivered such other instruments and documents~~ be added as a party hereto without the written consent of the Administrative Agent (which shall ~~have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable~~not be unreasonably withheld). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any Any increase in the Aggregate Commitment pursuant to ~~the provisions hereof (“Increase Date”)~~this Section 2.19 shall, ~~which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment~~ subject to the ~~Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction~~ satisfaction of the ~~outstanding ABR Advances held by the Lenders~~conditions precedent referred to below, ~~to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to~~ be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or effective three Business Days after the date on which the ~~Obligations are accelerated~~ Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Commitment of an existing Lender) or ~~become due following~~ assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). The effectiveness of each such ~~Default, pay~~ increase to the Aggregate Commitment shall be subject to the conditions precedent that the Administrative Agent ~~(for the account~~ shall have received each of the following documents, each dated the effective date of such increase (or such other ~~Lenders,~~ date as shall be reasonably acceptable to ~~which~~ the ~~Agent shall pay their Pro Rata Shares upon receipt~~Administrative Agent): (a) ~~a sum equal to such Additional Lender’s Pro Rata Share~~ certified copies of ~~each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making~~ resolutions of the ~~Loans by an Additional Lender in accordance with the provisions~~ board of ~~the first sentence~~ directors of ~~Section 2.5.3(ii),~~ Borrower approving such ~~Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior~~ increase to the ~~Increase Date~~Aggregate Commitment, ~~an undivided interest~~ in form and ~~participation~~ substance reasonably acceptable to the Administrative Agent, and (b) such other documents, opinions of counsel and certificates as the Administrative Agent may reasonably request, each in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed form and substance reasonably acceptable to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.the

Appears in 1 contract

Samples: Credit Agreement (Vectren Corp)

Increases in Aggregate Commitment. (i) Subject to the ~~provisions of this Section 2.5.3~~conditions set forth below, the ~~Borrower~~ Borrowers may, upon at ~~any~~ least ten (10) days (or such other period of time agreed to between the Agent and the Borrowers) prior written notice to the Agent and the Lenders, increase the aggregate amount of the Commitments from time to time, ~~make~~ either by designating a ~~request~~ lender not theretofore a Lender to become a Lender (~~a “Facility Increase Request”), by notice~~ such designation to be effective only with the ~~Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of~~ prior written consent (such ~~requested increase. Within twenty (20~~consent not to be unreasonably withheld) ~~days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval~~ of the Agent, ) or by agreeing with an existing Lender that such Lender's Commitment(s) shall be increased (thus increasing the Aggregate Commitment may be so increased either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the aggregate amount of ~~their Commitments~~ the Commitments); provided that: (~~any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1~~a) no Default or ~~Unmatured~~ Event of Default shall ~~then exist nor would occur immediately after giving effect to~~ have occurred and be continuing hereunder as of the effective date of such ~~increase and~~ increase; (2b) the representations and warranties made by the Borrowers and contained in Article ~~V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty~~ IV hereof shall ~~have been~~ be true and correct on and as of the effective date with the same effect as if made on and as of such ~~earlier~~ date (other than those representations and warranties that by their terms speak as of a particular date, ~~(B) unless otherwise agreed by the Borrower~~ which representations and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender warranties shall be ~~not less than $5,000,000~~ true and correct as of such particular date); (~~and, if in excess thereof, in integral multiples of $1,000,000); (D~~c) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such ~~Additional~~ increase in the aggregate amount of the U.S. Commitments shall not be greater than $50,000,000, and shall not cause the aggregate amount of all U.S. Commitments to exceed $300,000,000, and the amount of such increase in the aggregate amount of the Canadian Commitments shall not be greater than $20,000,000, and shall not cause the aggregate amount of all Canadian Commitments to exceed $50,000,000; (d) The Borrowers and the Lender or lender not theretofore a Lender~~’s Commitment or increased Commitment (as applicable); (G)~~ , shall execute and deliver to the ~~Borrower shall have delivered~~ Agent, a Lender Addition and Acknowledgement Agreement, in form and substance satisfactory to the Agent ~~opinions of counsel (substantially similar to~~ and acknowledged by the ~~forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment~~ Agent and each ~~Note~~ Borrower (a "Lender Addition and ~~Commitment and Acceptance executed and delivered~~ Acknowledgement Agreement"); (e) no existing Lender shall be obligated in ~~connection therewith)~~any way to increase any of its Commitment; and (Hf) ~~each of~~ the ~~Guarantors~~ Borrowers shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered complied with such other ~~instruments and documents as the Agent shall have reasonably requested~~ conditions in connection with such ~~new Commitment or~~ increase ~~in the Commitment (~~as ~~applicable). The form and substance of the documents~~ may be required ~~under clauses (E) through (I) above shall be fully acceptable to~~ by the Agent~~. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment~~. (ii) On Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date ~~of any increase~~ specified in ~~the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”)~~a Lender Addition and Acknowledgement Agreement, ~~which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional~~ such existing Lender shall ~~make~~ have a ~~payment to the Agent in an amount sufficient, upon the application of~~ Commitment or Commitments as therein set forth or such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional other Lender shall ~~not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on~~ become a Lender with a Commitment or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof Commitments as therein set forth and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all ~~Advances made on or after such Increase Date and shall otherwise have all of~~ the rights and obligations of a Lender ~~hereunder on and after~~ with such ~~Increase Date. Notwithstanding the foregoing, upon the occurrence of~~ a ~~Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances~~ Commitment or Commitments hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) ~~On the Increase Date~~ Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any Note or Notes, if requested, subject to such addition and assumption and the ~~making~~ approval by the Agent of any lender party thereto that is not an existing Lender, the ~~Loans by an Additional~~ Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in ~~accordance with~~ this Section 2.14 have been satisfied: (a) accept such Lender Addition and Acknowledgement Agreement; (b) record the ~~provisions of~~ information contained therein in the ~~first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed~~ Register; and (c) give prompt notice thereof to ~~have irrevocably and unconditionally purchased and received, without recourse or warranty, from~~ the Lenders ~~party to this Agreement immediately prior~~ and the Borrowers and deliver to the ~~Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all~~ Lenders ~~(including each Additional Lender) hold participation interests in each such Facility LC in~~ a schedule reflecting the ~~proportion of their respective Commitments (as so increased)~~new Commitments. (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: Credit Agreement (Universal Forest Products Inc)

Increases in Aggregate Commitment. (i) Subject to the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, ~~make a~~ request (a “Facility Increase Request”), by notice to the Agent, ~~for~~ the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having ~~one or more~~ financial institutions (other than the Lenders then holding a Commitment hereunder) approved ~~in writing~~ by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved ~~in writing~~ by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) ~~on the applicable Increase Date, (1)~~ no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier dateincrease, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) ~~after giving effect to such increase,~~ the Aggregate Commitment shall not exceed $~~1,500,000,000~~650,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ~~ABR~~ Floating Rate Advances held by the Lenders, to cause the principal amount outstanding under the ~~ABR~~ Floating Rate Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ~~ABR~~ Floating Rate Loans held by each Lender, and each such payment shall constitute ~~an ABR~~ a Floating Rate Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a ~~Revolving~~ Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding ~~Revolving~~ Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a ~~Revolving~~ Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section ~~2.5.3(ii~~2.5.2(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: Credit Agreement (Ryland Group Inc)

Increases in Aggregate Commitment. ~~(i) Subject~~ The Borrower shall have the right, no more frequently than once in any twelve month period, to ~~the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, make a~~ request ~~(a “Facility Increase Request”), by notice to the Agent, for the Agent’s approval of an increase of~~ that the Aggregate Commitment ~~within the limitations hereinafter set forth, which Facility~~ be increased (each a "Commitment Increase ~~Request shall set forth the~~ Request") in a minimum amount of ~~such requested increase. Within twenty (20) days of such Facility Increase Request~~$10,000,000 by obtaining additional Commitments, ~~Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased~~ either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any from one or more of the Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”)or one or more other lending institutions, provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C heretohereunder, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in together with the Aggregate Commitment under (and ~~each Note and Commitment and Acceptance executed and delivered~~ as defined in) the 364-Day Credit Agreement, shall in ~~connection therewith); (H) each~~ no event exceed $200,000,000 without the consent of all of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable)Lenders. The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any Any increase in the Aggregate Commitment pursuant to ~~the provisions hereof (“Increase Date”), which Increase Date~~ this Section 2.6(c) shall be ~~mutually agreed upon by Borrower~~effected concurrently with a proportionate increase in the Aggregate Commitment under (and as defined in) the 364-Day Credit Agreement. In the event of such a Commitment Increase Request, each ~~Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction~~ of the ~~outstanding ABR Advances held by~~ Lenders shall be given the ~~Lenders,~~ opportunity to ~~cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be~~ participate in the ~~proportion of~~ requested increase ratably in the proportions that their respective Commitments ~~(as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund~~ bear to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunderAggregate Commitment. ~~Such Additional~~ No Lender shall ~~not participate in~~ have any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender obligation to increase its Commitment ~~hereunder at any time or~~ pursuant to a ~~commitment or agreement on~~ request by the ~~part~~ Borrower hereunder. To the extent that all of the Lenders do not elect to participate in such requested increase after being afforded an opportunity to do so, then the Borrower or shall consult with the Agent as to ~~give or grant any Lender~~ the ~~right to increase its Commitment hereunder at any time.~~number, identity and requested Commitments of additional financial institutions which the Borrower may, upon the written consent of the Agent (which consent shall not be unreasonably

Appears in 1 contract

Samples: Credit Agreement (Coachmen Industries Inc)

Increases in Aggregate Commitment. ~~(i)~~ Subject to the ~~provisions of this Section 2.5.3~~terms and conditions set forth herein, the ~~Borrower may, at any time and~~ Parent shall have the right to cause from time to ~~time, make a request~~ time (but not more than twice in any calendar year) an increase in the Aggregate Commitment (a “~~Facility Increase Request~~Commitment Increase”), ) by notice to the Agent, for the Agent’s approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased either by having allowing one or more ~~financial institutions (other than the~~ existing Lenders ~~then holding a Commitment hereunder) approved in writing by the Borrower and the Agent~~ to increase their respective Commitments (each, a an “~~New~~ Increasing Lender”) ~~become Lenders hereunder~~ and/or by ~~having any~~ adding to this Agreement one or more of additional financial institutions that are not already Lenders ~~then holding a Commitment~~ hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as each, an “Additional Lender”), ; provided that (Ai) ~~on the applicable~~ each Commitment Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be in an amount that is not less than $~~5,000,000~~ 25,000,000, (~~and, if in excess thereof, in integral multiples of $1,000,000); (D~~ii) ~~after giving effect to such increase,~~ no Commitment Increase shall cause the Aggregate Commitment ~~shall not~~ to exceed $~~1,500,000,000;~~ 2,500,000,000, (Eiii) ~~the Borrower and each~~ no Additional Lender shall ~~have executed~~ be added as a party hereto without the written consent of the Administrative Agent, each Issuing Bank and ~~delivered~~ each Swing Line Lender (not to be unreasonably withheld, conditioned or delayed), (iv) if a ~~commitment~~ Commitment Increase involves any Increasing Lender, the Borrowers and ~~acceptance~~ such Increasing Lender shall execute an agreement substantially in the form of Exhibit B hereto and (v) if a Commitment Increase involves any Additional Lender, the ~~“Commitment~~ Borrowers and ~~Acceptance”)~~ such Additional Lender shall execute an agreement substantially in the form of Exhibit C hereto. No Lender’s Commitment shall be increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion). No consent of any Lender (other than the Lenders participating in the Commitment Increase) shall be required for any Commitment Increase. (hhh) Each Commitment Increase pursuant to this Section 2.20 shall become effective on the date agreed by the Parent, the Administrative Agent and the relevant Increasing Lenders and/or Additional Lenders, and the Administrative Agent shall ~~have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of~~ notify each ~~Additional~~ Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Datethereof. Notwithstanding the foregoing, ~~upon~~ no Commitment Increase shall become effective under this paragraph unless (i) on the ~~occurrence~~ proposed date of the effectiveness of such Commitment Increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a ~~Default prior~~ certificate to that effect dated such date and executed by an Authorized Officer and (ii) the Administrative Agent shall have received such documents and opinions consistent with those delivered on the Effective Date as to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account organizational power and authority of the ~~other Lenders,~~ Borrowers to ~~which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal~~ borrow hereunder after giving effect to such ~~Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof~~Commitment Increase as the Administrative Agent may reasonably request. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: Credit Agreement (Southwestern Energy Co)

Increases in Aggregate Commitment. ~~(i) Subject~~ The Borrower shall have the right, no more frequently than once in any twelve month period, to ~~the provisions of this Section 2.5.3, the Borrower may, at any time and from time to time, make a~~ request ~~(a “Facility Increase Request”), by notice to the Agent, for the Agent’s approval of an increase of~~ that the Aggregate Commitment ~~within the limitations hereinafter set forth, which Facility~~ be increased (each a "Commitment Increase ~~Request shall set forth the~~ Request") in a minimum amount of ~~such requested increase. Within twenty (20) days of such Facility Increase Request~~$10,000,000 by obtaining additional Commitments, ~~Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of the Agent, the Aggregate Commitment may be so increased~~ either by having one or more financial institutions (other than the Lenders then holding a Commitment hereunder) approved in writing by the Borrower and the Agent (each, a “New Lender”) become Lenders hereunder and/or by having any from one or more of the Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved in writing by the Borrower and the Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as an “Additional Lender”)or one or more other lending institutions, provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Agent, the Commitment of any New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit C heretohereunder, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in together with the Aggregate Commitment under (and ~~each Note and Commitment and Acceptance executed and delivered~~ as defined in) the Three Year Credit Agreement, shall in ~~connection therewith); (H) each~~ no event exceed $200,000,000 without the consent of all of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable)Lenders. The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any Any increase in the Aggregate Commitment pursuant to ~~the provisions hereof (“Increase Date”), which Increase Date~~ this Section 2.6(c) shall be ~~mutually agreed upon by Borrower~~effected concurrently with a proportionate increase in the Aggregate Commitment under (and as defined in) the Three Year Credit Agreement. In the event of such a Commitment Increase Request, each ~~Additional Lender and~~ of the ~~Agent, each Additional~~ Lenders shall be given the opportunity to participate in the requested increase ratably in the proportions that their respective Commitments bear to the Aggregate Commitment. No Lender shall ~~make~~ have any obligation to increase its Commitment pursuant to a ~~payment~~ request by the Borrower hereunder. To the extent that all of the Lenders do not elect to participate in such requested increase after being afforded an opportunity to do so, then the Borrower shall consult with the Agent as to the ~~Agent in an amount sufficient~~number, identity and requested Commitments of additional financial institutions which the Borrower may, upon the ~~application~~ written consent of the Agent (which consent shall not be unreasonably withheld), invite to participate in the Aggregate Commitment. In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in the Aggregate Commitment, the Borrower, the Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall be Lenders for all purposes of this Agreement and the other Loan Documents, and setting forth such additional provisions as the Agent shall consider reasonably appropriate. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and delivery of such ~~payments by all Additional Lenders to~~ amendment as provided above, and upon satisfaction of such other conditions as the ~~reduction~~ Agent may reasonably specify upon the request of the ~~outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders~~ financial institutions that are increasing or extending new Commitments (including ~~any Additional Lender) to be in~~ the ~~proportion~~ delivery of ~~their respective Commitments (as~~ certificates, evidence of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction corporate authority and legal opinions on behalf of the ~~outstanding ABR Loans held by each Lender~~Borrower), and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower this Agreement shall be deemed to ~~repay~~ be amended accordingly. Notwithstanding anything in this Section 2.6(c) to the contrary, no such ~~Eurodollar Advance~~ increase in the Aggregate Commitment shall be effective if (A) a Default or Unmatured Default shall exist on the date ~~of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on~~ any such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances Commitment Increase Request is made on or after ~~such Increase Date and~~ giving effect to the requested increase or (B) the Borrower shall ~~otherwise~~ have ~~all of~~ voluntarily reduced the ~~rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default~~ Aggregate Commitment at any time prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of ~~the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii),~~ such ~~Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the~~ Commitment Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased)Request. (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Coachmen Industries Inc)

Increases in Aggregate Commitment. (i) ~~Subject to the provisions of this Section 2.5.3~~At any time, the Borrower ~~may~~may arrange (in consultation with the Administrative Agent) for the Aggregate Commitment to be increased by an aggregate amount of up to $400,000,000 without the prior written consent of any Lender whose Commitment is not being increased; provided, that any such increase shall be in a minimum amount of $5,000,000 (and in multiples of $5,000,000 if in excess thereof); provided, further, that the Aggregate Commitment shall at ~~any~~ no time exceed $1,000,000,000 without the consent of the Required Lenders. The Borrower shall provide notice of such proposed increase in a written notice to the Administrative Agent and ~~from time~~ the Lenders not less than ten (10) Business Days prior to ~~time~~the proposed effective date of such increase, ~~make a request~~ which notice (a “~~Facility~~ Commitment Increase ~~Request~~Notice”~~), by notice to~~ ) shall specify the ~~Agent, for~~ amount of the ~~Agent’s approval of an~~ proposed increase of in the Aggregate Commitment ~~within~~ and the ~~limitations hereinafter set forth, which Facility Increase Request shall set forth the amount~~ proposed effective date of such increase. No Lender shall have any obligation to increase its Commitment pursuant to a Commitment Increase Notice, and the Borrower shall not be required to offer any Lender an opportunity to participate in the requested increase~~. Within twenty~~ . (20ii) ~~days of such Facility Increase Request~~Not later than three (3) Business Days prior to the proposed effective date, ~~Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise~~ the Borrower shall ~~constitute disapproval. Upon approval~~ notify the Administrative Agent of ~~the Agent, the Aggregate Commitment may be so increased either by having one or more financial institutions~~ (~~other than the Lenders then holding a Commitment hereunder~~i) ~~approved in writing by the Borrower and the Agent~~ any Lender (each, a “Proposed Increase Lender”) that shall have agreed to increase its existing Commitment in connection with such Commitment Increase Notice and (ii) any financial institution (other than an Ineligible Institution) that shall have agreed to become a new “Lender” party hereto (each, a “Proposed New Lender”) ~~become~~ in connection with such Commitment Increase Notice. Each Proposed Increase Lender and Proposed New Lender, and the allocation of the proposed increase in the Aggregate Commitment, shall be subject to the consent of the Administrative Agent, each LC Issuer and the Swing Line Lender (which consent shall not be unreasonably withheld). If the Borrower shall not have arranged for Lenders ~~hereunder and/or by having any one or more of~~ and Proposed New Lenders ~~then holding a Commitment hereunder (at their respective election~~ to commit to increases in their ~~sole discretion) that~~ Commitments or new Commitments, as applicable, in an aggregate amount equal to the proposed increase in the Aggregate Commitment, then the Borrower shall be deemed to have ~~been approved in writing by~~ reduced the amount of its Commitment Increase Notice to the aggregate amount of such increases and new Commitments. The Administrative Agent shall notify the Borrower and the ~~Agent increase~~ Lenders on or before the Business Day immediately prior to the proposed effective date of the amount of ~~their Commitments~~ each Lender’s and Proposed New Lender’s Commitment and the amount of the Aggregate Commitment, which amount shall be effective on the following Business Day. (iii) Any increase in the Aggregate Commitment shall be subject to the following conditions precedent: (a) the Borrower shall have obtained the consent thereto of each Guarantor and its reaffirmation of any Loan Documents executed by it, which consent and reaffirmation shall be in writing and in form and substance reasonably satisfactory to the Administrative Agent, (b) as of the date of the Commitment Increase Notice and as of the proposed effective date of the increase in the Aggregate Commitment, all representations and warranties shall be true and correct in all material respects (or, to the extent qualified by materiality or Materially Adverse Effect, in all respects) as though made on such date (unless any such ~~Lender that elects~~ representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects (or, to ~~increase its Commitment~~ the extent qualified by materiality or Materially Adverse Effect, in all respects) as of such date) and ~~any New Lender being hereinafter referred to as an “Additional Lender”), provided that (A) on the applicable Increase Date, (1)~~ no Default or Unmatured Default shall have occurred and then ~~exist nor would occur immediately after giving effect to such increase and~~ be continuing, (2c) the ~~representations and warranties contained in Article V and in~~ Borrower, the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by the Borrower and the Administrative Agent, ~~the Commitment of any~~ each LC Issuer and each Proposed New Lender shall not be less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000), (C) unless otherwise agreed by the Borrower and the Agent, the increase in the Commitment of any Lender shall be not less than $5,000,000 (and, if in excess thereof, in integral multiples of $1,000,000); (D) after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the Borrower and each Additional or Proposed Increase Lender shall have executed and delivered a ~~commitment~~ Commitment and ~~acceptance~~ Acceptance (~~the~~ a “Commitment and Acceptance”) substantially in the form of Exhibit C I hereto, ~~and~~ (d) any Proposed New Lender that is organized under the ~~Agent~~ laws of a jurisdiction outside of the United States shall ~~have accepted and executed the same; (F) the Borrower shall have executed and delivered~~ provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent ~~a Note payable~~ to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; Act and (Ie) the Borrower and ~~each Additional~~ any Proposed New Lender shall otherwise have executed and delivered such other ~~instruments~~ instruments, documents and ~~documents~~ agreements as the Administrative Agent shall have reasonably requested in connection with such ~~new Commitment or increase~~ increase. If any fee shall be charged by the Lenders in connection with any such increase, such fee shall be in accordance with then prevailing market conditions, which market conditions shall have been reasonably documented by the ~~Commitment (as applicable)~~Administrative Agent to the Borrower. ~~The form and substance~~ Upon satisfaction of the ~~documents required under clauses (E) through (I) above shall be fully acceptable~~ conditions precedent to ~~the Agent. The Agent shall promptly provide written notice to the Lenders following~~ any ~~such~~ increase in the Aggregate Commitment~~. (ii) On~~ , the Administrative Agent shall promptly advise the Borrower and each Lender of the effective date of such increase. Upon the effective date of any increase in the Aggregate Commitment ~~pursuant to the provisions hereof (“Increase Date”)~~that is provided by a Proposed New Lender, ~~which Increase Date~~ such Proposed New Lender shall be ~~mutually agreed upon by Borrower, each Additional~~ a party to this Agreement as a Lender and ~~the Agent, each Additional Lender~~ shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have ~~all of~~ the rights and obligations of a Lender ~~hereunder on and after such Increase Date~~hereunder. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment ~~or agreement~~ on the part of any Lender to increase its Commitment hereunder at any ~~time~~ time. (iv) Upon the execution and delivery of such Commitment and Acceptance, the Administrative Agent shall make such reallocations, sales, assignments or ~~a commitment or agreement~~ other relevant actions in respect of each Lender’s credit and loan exposure as are necessary ratably among the Lenders to give effect to each such increase in the Aggregate Commitment; provided, that the Borrower hereby agrees to compensate each Lender for all losses, expenses and liabilities incurred by such Lender in connection with the sale and assignment of any Eurodollar Loans hereunder on the ~~part of~~ terms and in the ~~Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time~~manner as set forth in Article III, including, without limitation, Section 3.4.

Appears in 1 contract

Samples: Credit Agreement (Blueknight Energy Partners, L.P.)

Increases in Aggregate Commitment. (i) Subject to the provisions of ~~this~~ Section ~~2.5.3~~2.5(d)(v), ~~the~~ Borrower may, at any time and from time to time, ~~make a~~ request (~~a “~~"Facility Increase Request”"), by notice to ~~the~~ Administrative Agent, ~~for the~~ Administrative Agent’s 's approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of ~~the~~ Administrative Agent, the Aggregate Commitment may be so increased either by having ~~one or more~~ financial institutions (other than ~~the Lenders~~ Banks then holding a Commitment hereunder) approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent (~~each, a “~~"New ~~Lender”~~Banks") become ~~Lenders~~ Banks hereunder and/or by having any one or more of ~~Lenders~~ Banks then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent increase the amount of their Commitments (any such ~~Lender~~ Bank that elects to increase its Commitment and any New ~~Lender~~ Bank being hereinafter referred to as ~~an “~~a "Additional ~~Lender”~~Bank"), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the Commitment of any New ~~Lender~~ Bank shall not be less than $~~5,000,000~~ 25,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000), (CB) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the increase in the Commitment of any ~~Lender~~ Bank shall be not less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000); (DC) ~~after giving effect to such increase,~~ the Aggregate Commitment shall not exceed $~~1,500,000,000~~600,000,000; (ED) ~~the~~ Borrower and each Additional ~~Lender~~ Bank shall have executed and delivered a commitment and acceptance (the “"Commitment and Acceptance”") substantially in the form of Exhibit C hereto, and the Agent shall have accepted and executed the same; (F) the Borrower shall have executed and delivered to the Agent a Note payable to the order of each Additional Lender that requests a Note, each such Note to be in the amount of such Additional Lender’s Commitment or increased Commitment (as applicable); (G) the Borrower shall have delivered to the Agent opinions of counsel (substantially similar to the forms of opinion referred to in Section 4.1(v), modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (H) each of the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that its Guaranty continues in full force and effect; and (I) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (E) through (I) above shall be fully acceptable to the Agent. The Agent shall promptly provide written notice to the Lenders following any such increase in the Aggregate Commitment. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“Increase Date”), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and the Agent, each Additional Lender shall make a payment to the Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ABR Advances held by the Lenders, to cause the principal amount outstanding under the ABR Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). The Borrower hereby irrevocably authorizes each Additional Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ABR Loans held by each Lender, and each such payment shall constitute an ABR Loan hereunder. Such Additional Lender shall not participate in any Eurodollar Advance outstanding on the Increase Date, but, if the Borrower shall at any time on or after such Increase Date convert or continue any Eurodollar Advance outstanding on such Increase Date, the Borrower shall be deemed to repay such Eurodollar Advance on the date of the conversion or continuation thereof and then to reborrow as a Eurodollar Advance a like amount on such date so that each Additional Lender shall make a Eurodollar Loan on such date in its Pro Rata Share of such Eurodollar Advance. Each Additional Lender shall also make a Revolving Loan in the amount of its Pro Rata Share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a Default prior to the date on which an Additional Lender is holding Revolving Loans equal to its Pro Rata Share of all Advances hereunder, such Additional Lender shall, upon notice from the Agent, on or after the date on which the Obligations are accelerated or become due following such Default, pay to the Agent (for the account of the other Lenders, to which the Agent shall pay their Pro Rata Shares upon receipt) a sum equal to such Additional Lender’s Pro Rata Share of each Advance then outstanding with respect to which such Additional Lender does not then hold a Revolving Loan equal to its Pro Rata Share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section 2.5.3(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from the Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of the Borrower or the Agent to give or grant any Lender the right to increase its Commitment hereunder at any time.the

Appears in 1 contract

Samples: Credit Agreement (MDC Holdings Inc)

Increases in Aggregate Commitment. (i) Subject to the provisions of this Section ~~2.5.3~~2.5(d)(i) and Section 2.5(d)(v), ~~the~~ Borrower may, at any time and from time to time, ~~make a~~ request (~~a “~~"Facility Increase Request”"), by notice to ~~the~~ Administrative Agent, ~~for the~~ Administrative Agent’s 's approval of an increase of the Aggregate Commitment within the limitations hereinafter set forth, which Facility Increase Request shall set forth the amount of such requested increase. Within twenty (20) days of such Facility Increase Request, Administrative Agent shall advise Borrower of its approval or disapproval thereof; failure to so advise Borrower shall constitute disapproval. Upon approval of ~~the~~ Administrative Agent, the Aggregate Commitment may be so increased either by having ~~one or more~~ financial institutions (other than ~~the~~ Lenders then holding a Commitment hereunder) approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent (~~each, a “~~"New ~~Lender”~~Lenders") become Lenders hereunder and/or by having any one or more of Lenders then holding a Commitment hereunder (at their respective election in their sole discretion) that have been approved ~~in writing~~ by ~~the~~ Borrower and ~~the~~ Administrative Agent increase the amount of their Commitments (any such Lender that elects to increase its Commitment and any New Lender being hereinafter referred to as ~~an “~~a "Additional Lender”"), provided that (A) on the applicable Increase Date, (1) no Default or Unmatured Default shall then exist nor would occur immediately after giving effect to such increase and (2) the representations and warranties contained in Article V and in the Guaranty are true and correct except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, (B) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the Commitment of any New Lender shall not be less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000), (CB) unless otherwise agreed by ~~the~~ Borrower and ~~the~~ Administrative Agent, the increase in the Commitment of any Lender shall be not less than $~~5,000,000~~ 10,000,000 (and, if in excess thereof, in integral multiples of $~~1,000,000~~5,000,000); (C) the Aggregate Commitment shall 22 not exceed $850,000,000; (D) ~~after giving effect to such increase, the Aggregate Commitment shall not exceed $1,500,000,000; (E) the~~ Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “"Commitment and Acceptance”") substantially in the form of Exhibit C hereto, and ~~the~~ Administrative Agent shall have accepted and executed the same; (FE) ~~the~~ Borrower shall have executed and delivered to ~~the~~ Administrative Agent a Note or Notes payable to the order of each Additional ~~Lender that requests a Note~~Lender, each such Note to be in the amount of such Additional Lender’s 's Commitment or increased Commitment (as applicable); (GF) ~~the~~ Borrower shall have delivered to ~~the~~ Administrative Agent ~~opinions~~ an opinion of counsel and certificate of Borrower's general counsel (substantially similar to the forms of opinion ~~referred to in Section 4.1(v)~~attached hereto as Exhibit E, modified to apply to the increase in the Aggregate Commitment and each Note and Commitment and Acceptance executed and delivered in connection therewith); (HG) ~~each of the~~ Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that ~~its Guaranty continues~~ their Guaranties continue in full force and effect; and (IH) ~~the~~ Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as ~~the~~ Administrative Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (ED) through (IH) above shall be fully acceptable to ~~the~~ Administrative Agent. ~~The~~ Administrative Agent shall promptly provide written notice to ~~the~~ Lenders following any such increase in the Aggregate ~~Commitment~~Commitment hereunder and shall promptly furnish to Lenders copies of the documents required under clauses (D), (F), (G) and (H) above. (ii) On the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof (“"Increase Date”"), which Increase Date shall be mutually agreed upon by Borrower, each Additional Lender and ~~the~~ Administrative Agent, each Additional Lender shall make a payment to ~~the~~ Administrative Agent in an amount sufficient, upon the application of such payments by all Additional Lenders to the reduction of the outstanding ~~ABR~~ Floating Rate Advances held by ~~the~~ Lenders, to cause the principal amount outstanding under the ~~ABR~~ Floating Rate Loans made by all Lenders (including any Additional Lender) to be in the proportion of their respective Commitments (as of such Increase Date). ~~The~~ Borrower hereby irrevocably authorizes each Additional Lender to fund to ~~the~~ Administrative Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding ~~ABR~~ Floating Rate Loans held by each Lender, and each such payment shall constitute ~~an ABR~~ a Floating Rate Loan hereunder. Such Additional Lender shall not participate in any ~~Eurodollar Advance~~ LIBOR Advances that are outstanding on the Increase Date, but, if ~~the~~ Borrower shall at any time on or after such Increase Date convert or continue any ~~Eurodollar~~ LIBOR Advance outstanding on such Increase Date, ~~the~~ Borrower shall be deemed to repay such ~~Eurodollar~~ LIBOR Advance on the date of the conversion or continuation thereof and then to reborrow as a ~~Eurodollar~~ LIBOR Advance a like amount on such date so that each Additional Lender shall make a ~~Eurodollar~~ LIBOR Loan on such date in its ~~Pro Rata Share~~ pro rata share of such ~~Eurodollar~~ LIBOR Advance. Each Additional Lender shall also make a ~~Revolving~~ Loan in the amount of its ~~Pro Rata Share~~ pro rata share of all Advances made on or after such Increase Date and shall otherwise have all of the rights and obligations of a Lender hereunder on and after such Increase Date. Notwithstanding the foregoing, upon the occurrence of a an Event of Default prior to the date on which an Additional Lender is holding ~~Revolving~~ Loans equal to its ~~Pro Rata Share~~ pro rata share of all Advances hereunder, such Additional Lender shall, upon notice from ~~the~~ Administrative Agent, on or after the date on which the Obligations are accelerated or become due following such Event of Default, pay to ~~the~~ Administrative Agent (for the account of the other Lenders, to which ~~the~~ Administrative Agent shall pay their ~~Pro Rata Shares~~ pro rata shares upon receipt) a sum equal to such Additional Lender~~’s Pro Rata Share~~ 's pro rata share of each Advance then outstanding with respect to which such Additional Lender does not then hold a ~~Revolving~~ Loan equal to its ~~Pro Rata Share~~ pro rata share thereof. (iii) On the Increase Date and the making of the Loans by an Additional Lender in accordance with the provisions of the first sentence of Section ~~2.5.3(ii~~2.5(d)(ii), such Additional Lender shall also be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, from ~~the~~ Lenders party to this Agreement immediately prior to the Increase Date, an undivided interest and participation in any Facility LC Letter of Credit then outstanding, ratably, such that all Lenders (including each Additional Lender) hold participation interests in each such Facility LC Letter of Credit in the proportion of their respective Commitments (as so increased). (iv) Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time or a commitment or agreement on the part of ~~the~~ Borrower or ~~the~~ Administrative Agent to give or grant any Lender the right to increase its Commitment hereunder at any time. (v) Notwithstanding anything to the contrary contained herein, Borrower may not request an increase in the Aggregate Commitment during the Term Out Period, and, if Borrower has requested an increase in the Aggregate Commitment prior to the Term Out Period but the Term Out Period commences prior to the effective date of such increase, such increase shall not take effect. Notwithstanding anything to the contrary contained herein, no increase of the Aggregate Commitment may be effected under this Section 2.5(d) if (x) an Unmatured Event of Default or Event of Default shall be in existence on the effective date of such increase or would occur after giving effect thereto or (y) any representation or warranty made or deemed made by Borrower in any Loan Document or any Guarantor in any Guaranty is not (or would not be) true or correct in any material respect on the effective date of such increase (except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date).

Appears in 1 contract

Samples: Credit Agreement (MDC Holdings Inc)

Common use of Increases in Aggregate Commitment Clause in Contracts