Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. (c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender). (d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 3 contracts
Samples: Credit Agreement (Brunswick Corp), Credit Agreement (Brunswick Corp), Credit Agreement (Brunswick Corp)
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments may, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying from time to time, request that the total Revolving Commitments be increased; provided that (i) the aggregate amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and 250,000,000, (ii) no Lender shall be required to provide any such incremental commitment and (iii) the conditions precedent to each borrowing set forth in Section 4.02 are satisfied at the time of any such request. Such notice shall set forth the amount of the requested increase in the Revolving Commitments (which shall be in minimum increments of $10,000,000) and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date). The Company may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the requested increase; provided that, notwithstanding the foregoing, no Person shall become a Lender without the prior written consent of the Administrative Agent, (x) Agent and each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 Issuing Bank and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Swingline Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) . The Company and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Commitment and/or its status as a New Lender Supplement (each, a “New Lender Supplement”), substantially hereunder. Any increase in the form of Exhibit JRevolving Commitments may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, whereupon such bankor chooses not to arrange for, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementAugmenting Lenders.
(cb) Unless otherwise agreed by Each of the parties hereto hereby agrees that the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference Agent may take any and all actions as may be reasonably necessary to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such ensure that, after giving effect to such Commitment any increase and each such deemed assignment and assumption of participationsin the Revolving Commitments pursuant to this Section, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans (if any) are held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the Lenders pro rata in accordance with their new Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment This may be effected in writing by accomplished at the Company. reasonable discretion of the Administrative Agent and (i) by requiring the outstanding Loans to be prepaid with the proceeds of new Loans, (ii) by causing Lenders participating that are not Augmenting Lenders to assign, at the Company’s expense, portions of their outstanding Loans to Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in the relevant increase and furnished this paragraph (b) shall be subject to the other parties heretoSection 2.17, but otherwise without premium or penalty.
Appears in 3 contracts
Samples: Credit Agreement (Beam Inc), Revolving Credit Agreement (Fortune Brands Inc), Revolving Credit Agreement (Fortune Brands Inc)
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments (“Incremental Revolving Commitments”) and, at the Borrower’s option, increase the Swing Line Facility and the Letter of Credit Sublimit on a ratable basis (with the consent of the Swing Line Lender and the Issuing Banks, respectively). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $250,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 (or such lesser amount approved by the Administrative Agent).
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and the proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower, the Administrative Agent, the Swing Line Lender and each Issuing Bank and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) each increase effected pursuant to this paragraph of the second proviso of Section 9.03(b)). The effectiveness of any Incremental Facility Amendment shall be in a minimum amount of at least $25,000,000 and subject to the satisfaction on the date thereof (y) no more than 4 Increased each, an “Incremental Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i”) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheldDate), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative AgentThe terms, on each Increased Facility Closing Date (i) the Borrowers provisions and documentation of Incremental Revolving Commitments shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference be, identical to the amount existing Revolving Commitments existing on the closing date of each Type of Loan such Incremental Facility Amendment (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested other than with respect to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior upfront fees applicable to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 3 contracts
Samples: Credit Agreement (Tradeweb Markets Inc.), Credit Agreement (Tradeweb Markets Inc.), Credit Agreement (Tradeweb Markets Inc.)
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments under either Facility (“Incremental Revolving Commitments”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.08 recomputed as of the last day of the most recent fiscal quarter for which financial statements have been or were required to be delivered pursuant to paragraph (a) or (b) of Section 5.01, and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $500,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower and the Administrative Agent and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) each increase effected pursuant of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestAdditional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date Date). The Administrative Agent shall receive not less than 10 Business Days’ advance notice (oror shorter, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased proposed Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 2 contracts
Samples: Credit Agreement (Nasdaq, Inc.), Credit Agreement (Nasdaq, Inc.)
Incremental Revolving Commitments. (a) The Company US Administrative Borrower may, at any time and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering prior to the Administrative Agent Maturity Date, by notice to Agent, request an Increased Facility Activation Notice specifying increase in the Revolver Commitments of the Lenders (the “Incremental Revolving Commitments”), subject to the terms and conditions set forth herein, in an aggregate principal amount for all such Incremental Revolving Commitments of up to $75,000,000 to be effective as of a date (the “Increase Date”) specified in the related notice to Agent; provided, however, that:
(i) the any Incremental Revolving Commitments requested hereby shall be in an amount of such increase and not less than $10,000,000;
(ii) subject to Section 1.8 in connection with a Limited Condition Transaction, on the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent date of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected any request by the Company after US Administrative Borrower for any Incremental Revolving Commitments and on the Effective related Increase Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender continuing and no Event of Default shall have result from such Incremental Revolving Commitments;
(iii) immediately prior to the incurrence of the Incremental Revolving Commitments, and after giving effect thereto, the representations and warranties set forth in Article IV shall be true and correct in all material respects (without duplication of materiality qualifiers) (other than any obligation such representations or warranties that, by their terms, refer to participate a specific date other than the applicable Increase Date, in which case as of such specific date); provided that, if the proceeds of such Incremental Revolving Commitment or any increase described Borrowing or issuance, renewal or extension of any Letter of Credit, as applicable, in connection therewith is in connection with a Limited Condition Transaction, then the condition precedent set forth in this paragraph unless it agrees clause (iii) shall be limited to do so (A) the Specified Representations with respect to the Loan Parties and (B) the Specified Target Representations with respect to the Person to be acquired or the investment to be made, in each case, as mutually agreed upon by the Administrative Borrowers and the Agent;
(iv) the proceeds of such Incremental Revolving Commitments shall be used for acquisitions and other investments, capital expenditures, working capital, and other general corporate purposes in accordance with, and as permitted by, the terms of the Loan Documents; and
(v) the Agent, in its sole discretion, has consented to such Incremental Revolving Commitments.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in In connection with any transaction described Incremental Revolving Commitments, this Agreement may be amended in a writing executed and delivered by the Administrative Borrowers and Agent to reflect any technical changes necessary to give effect to such increase in accordance with its terms as set forth herein, including, without limitation, amending and restating or supplementing Schedule C-1 to reflect the new Revolver Commitments of the Lenders (including any Incremental Revolver Commitments of the Incremental Revolving Lenders). This Section 2.16(b) shall supersede any provisions in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and 13.1 to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementcontrary.
(c) Unless otherwise agreed Agent shall promptly notify the Lender Group of a request by the US Administrative AgentBorrower for Incremental Revolving Commitments, on each Increased Facility Closing Date which notice shall include (i) the Borrowers shall borrow Revolving Loans under proposed amount, (ii) the relevant increased Commitments from each Lender participating in proposed Increase Date, (iii) whether the relevant proposed increase in an amount determined by reference should be made to the amount of each Type of Loan UK Revolver Commitments or the US Revolver Commitments (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increasedboth), and (iiiii) each the date by which Lenders wishing to participate in the Incremental Revolving Commitments must commit to an Incremental Revolving Commitment (the “Incremental Commitment Date”). Incremental Revolving Commitments may be provided, by any existing Lender immediately (it being understood that no existing Lender will have an obligation to make any Incremental Revolving Commitment, but the Borrowers will have an obligation to approach the existing Lender Group first, prior to such increase will automatically and without further act be deemed to have assigned to each New any Additional Lender, to provide any Incremental Revolving Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Revolving Commitment, an “Incremental Revolving Lender” and, collectively, the “Incremental Revolving Lenders”); provided that Agent, the Swing Lender and each Issuing Bank shall have consented in each of their sole discretion to such New Additional Lender’s providing such Incremental Revolving Commitments. If any Incremental Revolving Commitments are provided in accordance with this Section 2.16, no Person who is not at the time a Lender will automatically and without further act be deemed selected to provide the Incremental Revolving Commitments until the then-existing Lenders have assumed, been provided with a reasonable opportunity to provide all or a portion of such Incremental Revolving Commitments; provided that none of the then-existing Lenders will be required to provide any such Incremental Revolving Commitments without their respective consent. For the avoidance of doubt, no Loan Party or Subsidiary thereof or any Affiliate of the foregoing shall be an Incremental Revolving Lender;
(d) On the applicable Increase Date, each Additional Lender shall be or become a Lender party to this Agreement as of such applicable Increase Date by delivering an Incremental Agreement as of such Increase Date;
(e) The Incremental Revolving Commitments shall be subject to the prior satisfaction of conditions precedent to be agreed between the US Administrative Borrower, the Incremental Revolving Lenders providing such Incremental Revolving Commitments, and the Agent, including, without limitation, that Agent shall have received on or before the Increase Date the following, each dated such date:
(i) (A) a certificate of an Authorized Person certifying to resolutions of such Loan Party’s participations hereunder Board of Directors or sole member, as applicable, approving the Incremental Revolving Commitments, the borrowing of Revolving Loans thereunder and the corresponding modifications to this Agreement and such other matters as requested by Agent and (B) if requested by Agent, an opinion of counsel for the Borrowers, in form and substance reasonably satisfactory to Agent;
(ii) an Incremental Agreement from each Additional Lender in form and substance satisfactory to Agent (each, an “Incremental Agreement”), duly executed by such Additional Lender, Agent (at the direction of the Required Lenders) and the Administrative Borrowers; and
(iii) such other documents, certificates, opinions, or other items (that are substantially consistent with the items delivered on the Closing Date, but in any event no new or supplemental debenture under English law shall be required to be delivered in connection with such Incremental Revolving Commitments) as may be reasonably requested by Agent or the Incremental Revolving Lenders providing such Incremental Revolving Commitments;
(f) On the applicable Increase Date, upon fulfillment of the conditions set forth in Section 2.16(e), Agent shall notify the Lender Group (including each Additional Lender) and the US Administrative Borrower of the incurrence of the Incremental Revolving Commitments to be effected on the related Increase Date and shall record in the Register the relevant information with respect to the Incremental Revolving Lenders on such date.
(g) Upon any Increase Date on which any Incremental Revolving Commitments are effected if, on such Increase Date, there are any Revolving Loans outstanding, each of the Lenders that has an existing Revolver Commitment or Revolving Loan, as applicable, shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each such Lender, at par, such interests in the Revolving Loans outstanding Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans will be held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage the Lenders with existing Revolver Commitments or Revolving Loans, as applicable, and Incremental Revolving Lenders ratably in accordance with their Revolver Commitments after giving effect to the new addition of such Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 2 contracts
Samples: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Incremental Revolving Commitments. (a) The Company and any Borrower may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request during the Revolving Commitment Period the establishment of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments to be established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such increase and (iishorter period as may be agreed to by the Administrative Agent) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant date on which such notice is delivered to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties amount of the Loan Parties set forth in this Agreement and in the other Loan Documents Incremental Revolving Commitments being requested (which shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific datean amount not less than $5,000,000) and (iii) the identity of each Person proposed to become an Incremental Revolving Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (y) any Person that the Borrower proposes to become an Incremental Revolving Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan, must be approved by the Administrative Agent, each Issuing Bank and the Swing Line Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the time other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing. No Lender continuing and the representations and warranties of each Credit Party set forth in the Credit Documents shall have any obligation to participate be true and correct (A) in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent case of the Company representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the condition set forth in clause (which consent i) above and (iii) the Borrower shall not have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be unreasonably withheld), elects to become a “Lender” requested (consistent in all material respects with the documents delivered under this Agreement Section 3.1 on the Closing Date) by the Administrative Agent in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (eachsuch transaction. Each Incremental Facility Agreement may, a “New Lender Supplement”)without the consent of any Lender, substantially effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the form opinion of Exhibit Jthe Administrative Agent and the Borrower, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to give effect to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(cd) Unless otherwise agreed Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (ii) the Maximum Credit shall be increased by the Administrative Agentamount of such Incremental Revolving Commitment, on in each Increased Facility Closing Date case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments:
(i) the Borrowers shall borrow aggregate principal amount of the Revolving Loans under (the relevant increased “Existing Revolving Borrowings”) outstanding immediately prior to the effectiveness of such Incremental Revolving Commitments from shall be deemed to be repaid,
(ii) each Incremental Revolving Lender participating shall pay to the Administrative Agent in the relevant increase in same day funds an amount determined by reference equal to the difference, if positive, between:
(A) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of each Type the Resulting Revolving Borrowings (as hereinafter defined) and
(B) the product of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on Lender’s Pro Rata Share of such Increased Facility Closing Date and Class (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such effectiveness being deemed to be zero) multiplied by (y) the aggregate principal amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and the Existing Revolving Borrowings,
(iii) after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Lender immediately the portion of such funds that is equal to the difference, if positive, between,
(A) the product of (1) such Lender’s Pro Rata Share (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such increase will effectiveness being deemed to be zero) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and
(B) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,
(iv) after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Funding Notice delivered to the Administrative Agent in accordance with Section 2.1 (and the Borrower shall deliver such Funding Notice),
(v) each Lender shall be deemed to hold its Pro Rata Share of each Resulting Revolving Borrowing (calculated after giving effect to such effectiveness), and
(vi) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.18(c) if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. In addition, on such effective date, each of the Lenders holding a Revolving Commitment prior to such date (the “Pre-Increase Revolving Lenders”) shall automatically and without any further act action by any party be deemed to have assigned to each New Lenderthe Incremental Revolving Lenders on such date (the “Post-Increase Revolving Lenders”), and each such New Lender the Post-Increase Revolving Lenders will automatically and without any further act action by any party be deemed to have assumedassumed and purchased from the Pre-Increase Revolving Lenders, a portion of such Lender’s participations hereunder participation interest in outstanding Letters the Letter of Credit Obligations, Swing Line Loans and Protective Advances outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to such Commitment increase and each all such deemed assignment assignments and assumption of participationsassumptions, the percentage of the aggregate outstanding participations hereunder in Letters Letter of Credit Obligations shall be held by each Pre-Increase Revolving Lender (including and each such New Lender) will equal such Lender’s Applicable Percentage Post-Increase Revolving Lender ratably in accordance with its Ratable Share after giving effect to the new Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (QualTek Services Inc.), Abl Credit and Guaranty Agreement (QualTek Wireline LLC)
Incremental Revolving Commitments. (a) The So long as the Incremental Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Company shall have the right in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.22 (and Administrative Agent agrees to so coordinate), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders as provided below) provide Incremental Revolving Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto; provided, however, that:
(i) no Lender shall be obligated to provide an Incremental Revolving Commitment as a result of any such request by the Company, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Commitment and executed and delivered to the Administrative Agent an Incremental Revolving Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.22, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Commitment as in effect prior to giving effect to such Incremental Revolving Commitment provided pursuant to this Section 2.22;
(ii) any Lender (including New Lenders but any Eligible Assignee who will become a Lender) may so provide an Incremental Revolving Commitment without the consent of any other Lender) may from time to time agree ; provided that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount Issuing Lenders shall be required for any Lender providing an Incremental Revolving Commitment (such consent not to be unreasonably withheld or delayed);
(iii) each provision of incremental Incremental Revolving Commitments obtained after the Effective Date on a given date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph Section 2.22 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Assignee who will become a Lender)) of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties integral multiples of the Loan Parties set forth $5,000,000 in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.excess thereof;
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (yiv) the aggregate amount of each such Type or Eurocurrency Borrowing requested all Incremental Revolving Commitments provided pursuant to be so borrowed or effected had been proportionately increasedthis Section 2.22 plus the aggregate amount of all Incremental Term Loan Commitments provided pursuant to Section 2.21 shall not exceed $250,000,000; and
(v) all obligations of the Borrowers in connection with Incremental Revolving Commitments (and all Revolving Loans, and (ii) each Lender immediately prior interest, fees, obligations to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding reimburse drawings under Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment other amounts payable thereon) shall be Obligations under this Agreement and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Loan Documents. Notwithstanding anything to the contrary in Section 2.21 or Section 2.22, Incremental Revolving Commitments provided prior to the Closing Date (“Pre-Closing Incremental Revolving Commitments”) and Incremental Revolving Commitments provided within six months after the Closing Date, to the extent not exceeding $212,000,000 in the aggregate, will not be counted against the limits set forth in clause (iv) of either Section 2.21 or Section 2.22. In the case of Pre-Closing Incremental Revolving Commitments, in lieu of compliance with the first sentence of Section 2.22(b), and provided that all other requirements of this Section 2.22 shall have been satisfied, the provision of such Pre-Closing Incremental Revolving Commitments may be implemented by execution of an addendum to this Credit Agreement in form acceptable to the Incremental Revolving Lender providing such commitments, the Administrative Agent and the Company.
(b) At the time of the provision of Incremental Revolving Commitments pursuant to this Section 2.22, the Borrowers, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) shall execute and deliver to the Administrative Agent an Incremental Revolving Commitment Agreement, with the effectiveness of such Incremental Revolving Lender’s Incremental Revolving Commitment to occur on the date set forth in such Incremental Revolving Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any Affiliate thereof)), (ii) all Incremental Loan Commitment Requirements are satisfied, (iii) all other conditions set forth in this Section 2.22 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Revolving Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Commitment Agreement, and at such time, (i) the parties hereto hereby agrees thatTotal Revolving Commitments under, on each Increased Facility Closing Dateand for all purposes of, this Agreement shall be amended increased by the aggregate amount of such Incremental Revolving Commitments, (ii) Schedule 1.1A shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Revolving Lender, a Note will be issued, at the Company’s expense, to such Incremental Revolving Lender.
(but only c) At the time of the effective date of any Incremental Revolving Commitments pursuant to this Section 2.22, the Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Revolving Lenders, and incur additional Revolving Loans from certain other Revolving Credit Lenders (including the Incremental Revolving Lenders), in each case to the extent) extent necessary to reflect the existence so that all of the incremental Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating (after giving effect to any increase in the relevant increase Total Revolving Commitments pursuant to this Section 2.22) and furnished with the Borrowers being obligated to pay to the other parties heretorespective Revolving Lenders any costs of the type referred to in Section 2.18 in connection with any such repayment and/or Borrowing.
Appears in 2 contracts
Samples: Credit Agreement (Mirant Corp), Credit Agreement (Rri Energy Inc)
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments (“Incremental Revolving Commitments”) and, at the Borrower’s option, increase the Swing Line Facility and the Letter of Credit Sublimit on a ratable basis (with the consent of the Swing Line Lender and the Issuing Banks, respectively). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $250,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 (or such lesser amount approved by the Administrative Agent).
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and the proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower, the Administrative Agent, the Swing Line Lender and each Issuing Bank and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by effect the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender Section (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then provide for voting provisions applicable to the Eurocurrency Loans of the other Additional Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything comparable to the contrary in this Agreement, each provisions of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent clause (but only to the extentB) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.the
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any Borrower may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request during the Revolving Commitment Period the establishment of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments to be established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such increase and (iishorter period as may be agreed to by the Administrative Agent) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant date on which such notice is delivered to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties amount of the Loan Parties set forth in this Agreement and in the other Loan Documents Incremental Revolving Commitments being requested (which shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific datean amount not less than $5,000,000) and (iii) the identity of each Person proposed to become an Incremental Revolving Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (y) any Person that the Borrower proposes to become an Incremental Revolving Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan, must be approved by the Administrative Agent, each Issuing Bank and the Swing Line Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the time other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing. No Lender continuing and the representations and warranties of each Credit Party set forth in the Credit Documents shall have any obligation to participate be true and correct (A) in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent case of the Company representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the condition set forth in clause (which consent i) above and (iii) the Borrower shall not have DMFIRM #406105327 v2 120 delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be unreasonably withheld), elects to become a “Lender” requested (consistent in all material respects with the documents delivered under this Agreement Section 3.1 on the Closing Date) by the Administrative Agent in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (eachsuch transaction. Each Incremental Facility Agreement may, a “New Lender Supplement”)without the consent of any Lender, substantially effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the form opinion of Exhibit Jthe Administrative Agent and the Borrower, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to give effect to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(cd) Unless otherwise agreed Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (ii) the Maximum Credit shall be increased by the Administrative Agentamount of such Incremental Revolving Commitment, on in each Increased Facility Closing Date case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments:
(i) the Borrowers shall borrow aggregate principal amount of the Revolving Loans under (the relevant increased “Existing Revolving Borrowings”) outstanding immediately prior to the effectiveness of such Incremental Revolving Commitments from shall be deemed to be repaid,
(ii) each Incremental Revolving Lender shall pay to the Administrative Agent in same day funds an amount equal to the difference, if positive, between:
(A) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and
(B) the product of (x) such Lender’s Pro Rata Share of such Class (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such effectiveness being deemed to be zero) multiplied by (y) the aggregate principal amount of the Existing Revolving Borrowings,
(iii) after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Lender participating the portion of such funds that is equal to the difference, if positive, between,
(A) the product of (1) such Lender’s Pro Rata Share (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such effectiveness being deemed to be zero) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and
(B) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,
(iv) after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) DMFIRM #406105327 v2 121 in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Funding Notice delivered to the Administrative Agent in accordance with Section 2.1 (and the Borrower shall deliver such Funding Notice),
(v) each Lender shall be deemed to hold its Pro Rata Share of each Resulting Revolving Borrowing (calculated after giving effect to such effectiveness), and
(vi) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.18(c) if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. In addition, on such effective date, each of the Lenders holding a Revolving Commitment prior to such date (the “Pre-Increase Revolving Lenders”) shall automatically and without any further action by any party be deemed to have assigned to the Incremental Revolving Lenders on such date (the “Post-Increase Revolving Lenders”), and the Post-Increase Revolving Lenders will automatically and without any further action by any party be deemed to have assumed and purchased from the Pre-Increase Revolving Lenders, such participation interest in the relevant increase Letter of Credit Obligations, Swing Line Loans and Protective Advances outstanding on such Increase Effective Date as shall be necessary in an amount determined order that, after giving effect to all such deemed assignments and assumptions, the Letter of Credit Obligations shall be held by reference each Pre-Increase Revolving Lender and each Post-Increase Revolving Lender ratably in accordance with its Ratable Share after giving effect to the amount Incremental Revolving Commitments.
(a) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.24(a) and of the effectiveness of any Incremental Revolving Commitments, in each Type case advising the Lenders of Loan (the details thereof and, in the case of Eurocurrency Loanseffectiveness of any Incremental Revolving Commitments, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount Pro Rata Shares of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, the Lenders after giving effect to such Commitment increase thereto and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect payments required to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed be made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant LenderSection 2.24(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company US Administrative Borrower may, at any time and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering prior to the Administrative Agent Maturity Date, by notice to Agent, request an Increased Facility Activation Notice specifying increase in the Revolver Commitments of the Lenders (the “Incremental Revolving Commitments”), subject to the terms and conditions set forth herein, in an aggregate principal amount for all such Incremental Revolving Commitments occurring after the Fourth Amendment Effective Date of up to $25,000,000 to be effective as of a date (the “Increase Date”) specified in the related notice to Agent; provided, however, that:
(i) the any Incremental Revolving Commitments requested hereby shall be in an amount of such increase and not less than $10,000,000;
(ii) subject to Section 1.8 in connection with a Limited Condition Transaction, on the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent date of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected any request by the Company after US Administrative Borrower for any Incremental Revolving Commitments and on the Effective related Increase Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender continuing and no Event of Default shall have result from such Incremental Revolving Commitments;
(iii) immediately prior to the incurrence of the Incremental Revolving Commitments, and after giving effect thereto, the representations and warranties set forth in Article IV shall be true and correct in all material respects (without duplication of materiality qualifiers) (other than any obligation such representations or warranties that, by their terms, refer to participate a specific date other than the applicable Increase Date, in which case as of such specific date); provided that, if the proceeds of such Incremental Revolving Commitment or any increase described Borrowing or issuance, renewal or extension of any Letter of Credit, as applicable, in connection therewith is in connection with a Limited Condition Transaction, then the condition precedent set forth in this paragraph unless it agrees clause (iii) shall be limited to do so (A) the Specified Representations with respect to the Loan Parties and (B) the Specified Target Representations with respect to the Person to be acquired or the investment to be made, in each case, as mutually agreed upon by the Administrative Borrowers and the Agent;
(iv) the proceeds of such Incremental Revolving Commitments shall be used for acquisitions and other investments, capital expenditures, working capital, and other general corporate purposes in accordance with, and as permitted by, the terms of the Loan Documents;
(v) the Agent, in its sole discretion, has consented to such Incremental Revolving Commitments; and
(vi) receipt of any consent (in form and substance satisfactory to the Agent) pursuant to the Second Lien Secured Notes Documents which is necessary for the incurrence of such Incremental Revolving Commitments to be permitted pursuant to the terms of the Second Lien Secured Notes Documents.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in In connection with any transaction described Incremental Revolving Commitments, this Agreement may be amended in a writing executed and delivered by the Administrative Borrowers and Agent to reflect any technical changes necessary to give effect to such increase in accordance with its terms as set forth herein, including, without limitation, amending and restating or supplementing Schedule C-1 to reflect the new Revolver Commitments of the Lenders (including any Incremental Revolver Commitments of the Incremental Revolving Lenders). This Section 2.16(b) shall supersede any provisions in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and 13.1 to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementcontrary.
(c) Unless otherwise agreed Agent shall promptly notify the Lender Group of a request by the US Administrative AgentBorrower for Incremental Revolving Commitments, on each Increased Facility Closing Date which notice shall include (i) the Borrowers shall borrow Revolving Loans under proposed amount, (ii) the relevant increased Commitments from each Lender participating in proposed Increase Date, (iii) whether the relevant proposed increase in an amount determined by reference should be made to the amount of each Type of Loan UK Revolver Commitments or the US Revolver Commitments (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increasedboth), and (iiiii) each the date by which Lenders wishing to participate in the Incremental Revolving Commitments must commit to an Incremental Revolving Commitment (the “Incremental Commitment Date”). Incremental Revolving Commitments may be provided, by any existing Lender immediately (it being understood that no existing Lender will have an obligation to make any Incremental Revolving Commitment, but the Borrowers will have an obligation to approach the existing Lender Group first, prior to such increase will automatically and without further act be deemed to have assigned to each New any Additional Lender, to provide any Incremental Revolving Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Revolving Commitment, an “Incremental Revolving Lender” and, collectively, the “Incremental Revolving Lenders”); provided that Agent, the Swing Lender and each Issuing Bank shall have consented in each of their sole discretion to such New Additional Xxxxxx’s providing such Incremental Revolving Commitments. If any Incremental Revolving Commitments are provided in accordance with this Section 2.16, no Person who is not at the time a Lender will automatically and without further act be deemed selected to provide the Incremental Revolving Commitments until the then-existing Lenders have assumed, been provided with a reasonable opportunity to provide all or a portion of such Incremental Revolving Commitments; provided that none of the then-existing Lenders will be required to provide any such Incremental Revolving Commitments without their respective consent. For the avoidance of doubt, no Loan Party or Subsidiary thereof or any Affiliate of the foregoing shall be an Incremental Revolving Lender;
(d) On the applicable Increase Date, each Additional Lender shall be or become a Lender party to this Agreement as of such applicable Increase Date by delivering an Incremental Agreement as of such Increase Date;
(e) The Incremental Revolving Commitments shall be subject to the prior satisfaction of conditions precedent to be agreed between the US Administrative Borrower, the Incremental Revolving Lenders providing such Incremental Revolving Commitments, and the Agent, including, without limitation, that Agent shall have received on or before the Increase Date the following, each dated such date:
(i) (A) a certificate of an Authorized Person certifying to resolutions of such Loan Party’s participations hereunder Board of Directors or sole member, as applicable, approving the Incremental Revolving Commitments, the borrowing of Revolving Loans thereunder and the corresponding modifications to this Agreement and such other matters as requested by Agent and (B) if requested by Agent, an opinion of counsel for the Borrowers, in form and substance reasonably satisfactory to Agent;
(ii) an Incremental Agreement from each Additional Lender in form and substance satisfactory to Agent (each, an “Incremental Agreement”), duly executed by such Additional Lender, Agent (at the direction of the Required Lenders) and the Administrative Borrowers; and
(iii) such other documents, certificates, opinions, or other items (that are substantially consistent with the items delivered on the Closing Date, but in any event no new or supplemental debenture under English law shall be required to be delivered in connection with such Incremental Revolving Commitments) as may be reasonably requested by Agent or the Incremental Revolving Lenders providing such Incremental Revolving Commitments;
(f) On the applicable Increase Date, upon fulfillment of the conditions set forth in Section 2.16(e), Agent shall notify the Lender Group (including each Additional Lender) and the US Administrative Borrower of the incurrence of the Incremental Revolving Commitments to be effected on the related Increase Date and shall record in the Register the relevant information with respect to the Incremental Revolving Lenders on such date.
(g) Upon any Increase Date on which any Incremental Revolving Commitments are effected if, on such Increase Date, there are any Revolving Loans outstanding, each of the Lenders that has an existing Revolver Commitment or Revolving Loan, as applicable, shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each such Lender, at par, such interests in the Revolving Loans outstanding Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans will be held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage the Lenders with existing Revolver Commitments or Revolving Loans, as applicable, and Incremental Revolving Lenders ratably in accordance with their Revolver Commitments after giving effect to the new addition of such Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments under either Facility (“Incremental Revolving Commitments”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.06 recomputed as of the last day of the most recent fiscal quarter for which financial statements have been or were required to be delivered pursuant to paragraph (a) or (b) of Section 5.01, and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $750,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section 2.18 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower and the Administrative Agent and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section 2.18 (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (2) each increase effected pursuant of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestAdditional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date Date). The Administrative Agent shall receive not less than 10 Business Days’ advance notice (oror shorter, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased proposed Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Nasdaq, Inc.)
Incremental Revolving Commitments. (a) The Company US Administrative Borrower may, at any time and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering prior to the Administrative Agent Maturity Date, by notice to Agent, request an Increased Facility Activation Notice specifying increase in the Revolver Commitments of the Lenders (the “Incremental Revolving Commitments”), subject to the terms and conditions set forth herein, in an aggregate principal amount for all such Incremental Revolving Commitments of up to $75,000,000 to be effective as of a date (the “Increase Date”) specified in the related notice to Agent; provided, however, that:
(i) the any Incremental Revolving Commitments requested hereby shall be in an amount of such increase and not less than $10,000,000;
(ii) subject to Section 1.8 in connection with a Limited Condition Transaction, on the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent date of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected any request by the Company after US Administrative Borrower for any Incremental Revolving Commitments and on the Effective related Increase Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender continuing and no Event of Default shall have result from such Incremental Revolving Commitments;
(iii) immediately prior to the incurrence of the Incremental Revolving Commitments, and after giving effect thereto, the representations and warranties set forth in Article IV shall be true and correct in all material respects (without duplication of materiality qualifiers) (other than any obligation such representations or warranties that, by their terms, refer to participate a specific date other than the applicable Increase Date, in which case as of such specific date); provided that, if the proceeds of such Incremental Revolving Commitment or any increase described Borrowing or issuance, renewal or extension of any Letter of Credit, as applicable, in connection therewith is in connection with a Limited Condition Transaction, then the condition precedent set forth in this paragraph unless it agrees clause (iii) shall be limited to do so (A) the Specified Representations with respect to the Loan Parties and (B) the Specified Target Representations with respect to the Person to be acquired or the investment to be made, in each case, as mutually agreed upon by the Administrative Borrowers and the Agent;
(iv) the proceeds of such Incremental Revolving Commitments shall be used for acquisitions and other investments, capital expenditures, working capital, and other general corporate purposes in accordance with, and as permitted by, the terms of the Loan Documents; and
(v) the Agent, in its sole discretion, has consented to such Incremental Revolving Commitments; and
(vi) receipt of any consent (in form and substance satisfactory to the Agent) pursuant to the Second Lien Secured Notes Documents which is necessary for the incurrence of such Incremental Revolving Commitments to be permitted pursuant to the terms of the Second Lien Secured Notes Documents.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in In connection with any transaction described Incremental Revolving Commitments, this Agreement may be amended in a writing executed and delivered by the Administrative Borrowers and Agent to reflect any technical changes necessary to give effect to such increase in accordance with its terms as set forth herein, including, without limitation, amending and restating or supplementing Schedule C-1 to reflect the new Revolver Commitments of the Lenders (including any Incremental Revolver Commitments of the Incremental Revolving Lenders). This Section 2.16(b) shall supersede any provisions in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and 13.1 to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementcontrary.
(c) Unless otherwise agreed Agent shall promptly notify the Lender Group of a request by the US Administrative AgentBorrower for Incremental Revolving Commitments, on each Increased Facility Closing Date which notice shall include (i) the Borrowers shall borrow Revolving Loans under proposed amount, (ii) the relevant increased Commitments from each Lender participating in proposed Increase Date, (iii) whether the relevant proposed increase in an amount determined by reference should be made to the amount of each Type of Loan UK Revolver Commitments or the US Revolver Commitments (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increasedboth), and (iiiii) each the date by which Lenders wishing to participate in the Incremental Revolving Commitments must commit to an Incremental Revolving Commitment (the “Incremental Commitment Date”). Incremental Revolving Commitments may be provided, by any existing Lender immediately (it being understood that no existing Lender will have an obligation to make any Incremental Revolving Commitment, but the Borrowers will have an obligation to approach the existing Lender Group first, prior to such increase will automatically and without further act be deemed to have assigned to each New any Additional Lender, to provide any Incremental Revolving Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Revolving Commitment, an “Incremental Revolving Lender” and, collectively, the “Incremental Revolving Lenders”); provided that Agent, the Swing Lender and each Issuing Bank shall have consented in each of their sole discretion to such New Additional Lender’s providing such Incremental Revolving Commitments. If any Incremental Revolving Commitments are provided in accordance with this Section 2.16, no Person who is not at the time a Lender will automatically and without further act be deemed selected to provide the Incremental Revolving Commitments until the then-existing Lenders have assumed, been provided with a reasonable opportunity to provide all or a portion of such Incremental Revolving Commitments; provided that none of the then-existing Lenders will be required to provide any such Incremental Revolving Commitments without their respective consent. For the avoidance of doubt, no Loan Party or Subsidiary thereof or any Affiliate of the foregoing shall be an Incremental Revolving Lender;
(d) On the applicable Increase Date, each Additional Lender shall be or become a Lender party to this Agreement as of such applicable Increase Date by delivering an Incremental Agreement as of such Increase Date;
(e) The Incremental Revolving Commitments shall be subject to the prior satisfaction of conditions precedent to be agreed between the US Administrative Borrower, the Incremental Revolving Lenders providing such Incremental Revolving Commitments, and the Agent, including, without limitation, that Agent shall have received on or before the Increase Date the following, each dated such date:
(i) (A) a certificate of an Authorized Person certifying to resolutions of such Loan Party’s participations hereunder Board of Directors or sole member, as applicable, approving the Incremental Revolving Commitments, the borrowing of Revolving Loans thereunder and the corresponding modifications to this Agreement and such other matters as requested by Agent and (B) if requested by Agent, an opinion of counsel for the Borrowers, in form and substance reasonably satisfactory to Agent;
(ii) an Incremental Agreement from each Additional Lender in form and substance satisfactory to Agent (each, an “Incremental Agreement”), duly executed by such Additional Lender, Agent (at the direction of the Required Lenders) and the Administrative Borrowers; and
(iii) such other documents, certificates, opinions, or other items (that are substantially consistent with the items delivered on the Closing Date, but in any event no new or supplemental debenture under English law shall be required to be delivered in connection with such Incremental Revolving Commitments) as may be reasonably requested by Agent or the Incremental Revolving Lenders providing such Incremental Revolving Commitments;
(f) On the applicable Increase Date, upon fulfillment of the conditions set forth in Section 2.16(e), Agent shall notify the Lender Group (including each Additional Lender) and the US Administrative Borrower of the incurrence of the Incremental Revolving Commitments to be effected on the related Increase Date and shall record in the Register the relevant information with respect to the Incremental Revolving Lenders on such date.
(g) Upon any Increase Date on which any Incremental Revolving Commitments are effected if, on such Increase Date, there are any Revolving Loans outstanding, each of the Lenders that has an existing Revolver Commitment or Revolving Loan, as applicable, shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each such Lender, at par, such interests in the Revolving Loans outstanding Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans will be held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage the Lenders with existing Revolver Commitments or Revolving Loans, as applicable, and Incremental Revolving Lenders ratably in accordance with their Revolver Commitments after giving effect to the new addition of such Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without Any time after the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase Closing Date, the amount of their Commitments by executing and delivering Borrower may, upon written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, increase the Aggregate Revolving Commitments hereunder as provided in this Section 2.01(d) (the “Incremental Revolving Commitments”); provided that:
(i) the aggregate principal amount of all the Incremental Revolving Commitments established after the Closing Date, together with the aggregate principal amount of all the 3.5-Year Incremental Revolving Commitments established under the 3.5-Year Credit Agreement at or prior to such increase and time, will not exceed $500,000,000;
(ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuingcontinuing or shall result after giving effect to any such Incremental Revolving Commitments;
(iii) the conditions to the making of a Credit Extension under Section 5.02 shall be satisfied;
(iv) the Borrower will provide supporting resolutions, legal opinions, promissory notes and other items as may be reasonably required by the Administrative Agent and the Revolving Lenders providing Incremental Revolving Commitments;
(v) any new Revolving Lender providing an Incremental Revolving Commitment must be reasonably acceptable to the Administrative Agent, each of the L/C Issuers, if any, and the Borrower;
(vi) Revolving Lenders providing Incremental Revolving Commitments pursuant to this Section 2.01(d) will provide a Revolving Lender Joinder Agreement or other agreement reasonably acceptable to the Administrative Agent;
(vii) additional Incremental Revolving Commitments will be in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof; and
(viii) if any Revolving Loans are outstanding at the time of any such increase, the Borrower will make such payments and adjustments on the Revolving Loans (including payment of any break-funding amounts owing under Section 3.05) as may be necessary to give effect to the revised Revolving Committed Amounts and Revolving Commitment Percentages. No Lender Any Revolving Loans made in connection with the Incremental Revolving Commitments established hereunder shall have terms identical to the Revolving Loans existing at the time the Incremental Revolving Commitments are so established, except for fees payable to Revolving Lenders providing Incremental Revolving Commitments. In connection with the establishment of any Incremental Revolving Commitments, (A) none of CGMI, Barclays, Credit Suisse Securities (USA) LLC, X.X. Xxxxxx Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, RBS Securities Inc. or UBS AG, Stamford Branch as the joint lead arrangers hereunder (the “Joint Lead Arrangers”), shall have any obligation to participate arrange for or assist in arranging for any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Incremental Revolving Commitments without their prior written approval and shall be bound by subject to such conditions, including fee arrangements, as may be provided in connection therewith, (B) none of the Revolving Lenders, including Citibank and entitled Barclays, shall have any obligation to provide any Incremental Revolving Commitments without their prior written approval and (C) Schedule 2.01(a) will be revised to reflect the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative AgentRevolving Lenders, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date Revolving Commitments and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Revolving Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage Percentages after giving effect to the new establishment of any Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Directv)
Incremental Revolving Commitments. (a) The Company Borrower and any one or more Lenders (including New Lenders but without reasonably acceptable to the consent of any other Administrative Agent, the Issuing Bank and the Swingline Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their incur Incremental Revolving Commitments by executing and delivering to the Administrative Agent an Increased Facility Incremental Revolving Commitment Activation Notice specifying (i) the amount of such increase the Incremental Revolving Commitments and (ii) the applicable Increased Facility Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (i1) without the consent of the Required Lenders, (A) the aggregate principal amount of incremental Incremental Revolving Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 100,000,000, (B) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, and (iiC) without after giving pro forma effect thereto and to any concurrent transactions, the consent of Consolidated Leverage Ratio shall be less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, and (2) unless otherwise agreed by the Administrative Agent, (xA) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (yB) no more than 4 Increased Facility Closing Dates four Incremental Revolving Commitment Activation Notices may be selected delivered by the Company Borrower after the Effective Closing Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No existing Lender shall have any obligation to participate in incur any increase described in this paragraph Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) Any Incremental Revolving Commitment shall be on the same terms, pursuant to the same documentation, and treated the same as the existing Revolving Facility and shall be considered to be part of the Revolving Facility.
(c) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), Person that elects to become a “Lender” new Lender under this Agreement in connection with any transaction described in Section 2.23(a2.02(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit JF-1, whereupon such bank, financial institution or other entity Person (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementAgreement and the other Loan Documents.
(cd) Unless otherwise agreed by the Administrative Agent, on Upon each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating increase in the relevant increase in an amount determined by reference establishment of any Incremental Revolving Commitments pursuant to the amount of each Type of Loan (andthis Section 2.02, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of the Incremental Revolving Commitments (each an “Incremental Revolving Lender”) in respect of such increase, and each such New Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such New Incremental Revolving Lender) will equal such Lender’s Applicable Revolving Commitment Percentage and if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the new CommitmentsRevolving Loans being prepaid. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in the relevant increase and furnished this Agreement shall not apply to the other parties heretotransactions effected pursuant to the immediately preceding sentence. If there is a new Revolving Borrowing on such Incremental Revolving Commitment Closing Date, the Revolving Lenders after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments (“Incremental Revolving Commitments”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.08 and 6.09 recomputed as of the last day of the most recent fiscal quarter for which financial statements have been or were required to be delivered pursuant to paragraph (a) or (b) of Section 5.01, and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $250,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower and the Administrative Agent and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) each increase effected pursuant of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestAdditional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date Date). The Administrative Agent shall receive not less than 10 Business Days’ advance notice (oror shorter, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased proposed Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from From time to time agree that such Lenders shall obtain or increase prior to the amount of their Commitments Termination Date, the Borrower may by executing and delivering written notice to the Administrative Agent request one or more increases to the existing Revolving Commitments (any such increase, a “Revolving Commitment Increase” and, any additional Revolving Commitments provided pursuant to any Revolving Commitment Increase, a “New Revolving Commitment”), by an Increased Facility Activation Notice specifying amount (i) such that the Revolving Commitment immediately after giving effect to such Revolving Commitment Increase does not exceed $1,000,000,000.00 and (ii) that is not less than $25,000,000.00 for any New Revolving Commitment.
(b) Such notice shall specify (i) the amount of date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable New Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such increase notice is delivered to the Administrative Agent and (ii) the applicable Increased Facility Closing Date. Notwithstanding identity of each Lender or other Person that is an Eligible Assignee (each such other Person, a “New Lender”) to whom the foregoing, (i) without Borrower proposes any portion of such New Revolving Commitments be allocated and the consent amounts of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as such allocations; provided that the Administrative Agent may reasonably requestelect or decline to arrange such New Revolving Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Commitments for any Revolving Commitment Increase may elect or decline, in its sole discretion, to increase its existing Revolving Commitment by providing a New Revolving Commitment.
(c) Such New Revolving Commitments shall become effective, as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Commitments; (ii) the representations and warranties of the Loan Parties set forth in this Agreement Article IV and in the other Loan Documents that have no materiality or Material Adverse Effect qualification shall be true and correct in all material respects and the representations and warranties set forth in Article IV and in the other Loan Documents that have a materiality or Material Adverse Effect qualification shall be true and correct in all respects, in each case with the same effect as though made on and as of the Increased Facility Closing Amount Date (or, if any to the extent such representation or warranty is representations and warranties expressly stated relate to have been made as of a specific an earlier date, as of such specific date) and earlier date (iii) at the time Borrower shall be in pro forma compliance with each of and immediately the covenants set forth in Article V as of the most recent date of determination after giving effect to such increase, no Default or Event of Default New Revolving Commitments; (iv) the New Revolving Commitments shall have occurred be effected pursuant to an increase and be continuing. No Lender shall have any obligation joinder agreement (an “Increase and Joinder Agreement”) in form and substance acceptable to participate in any increase described in this paragraph unless it agrees to do so the Administrative Agent and each Issuer in its sole reasonable discretion.
(b) Any additional bank, financial institution or other entity whichexecuted and delivered by the Borrower, with the consent of the Company any existing Lender providing a New Revolving Commitment, any New Lender providing a New Revolving Commitment and the Administrative Agent (which consent shall not be unreasonably withheldand, to the extent required, each Issuer), elects and which shall be recorded in the Register, and each New Lender shall be subject to become a “Lender” under this Agreement the requirements set forth in Section 2.16(e) and (f); (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement such Revolving Commitment Increase; (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (ivi) the Borrowers Borrower shall borrow make any payments required pursuant to and in accordance with Section 2.14(e) in connection with the New Revolving Loans Commitments and (vii) unless all obligations under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then Existing Second Lien Notes have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) repaid in full, the aggregate amount of the Revolving Commitments shall not exceed $900,000,000.00. Notwithstanding anything herein to the contrary, each such Type or Eurocurrency Borrowing requested Issuer shall have approved the Revolving Commitment Increase allocated to be so borrowed or effected had been proportionately increased, each existing Lender and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned the New Revolving Commitment allocated to each New LenderLender (such approval not to be unreasonably withheld, delayed or conditioned).
(d) On the Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the New Lenders, and each of the New Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such New Lender will automatically interests in the Loans and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters Letter of Credit Obligations outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment Loans and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters Letter of Credit Obligations will be held by each Lender (including each such existing Lenders and New Lender) will equal such Lender’s Applicable Percentage Lenders ratably in accordance with their Revolving Commitments after giving effect to the new Commitments. The Eurocurrency Rate applicable Revolving Commitment Increase, (ii) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment, (iii) each New Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto and all other matters under this Agreement, and (iv) the Administrative Agent shall notify the Lenders (including any Eurocurrency Loan borrowed pursuant New Lenders) of the effectiveness of the applicable Revolving Commitment Increase and each Lender’s interests in the outstanding Loans and Letter of Credit Obligations after giving effect to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)assignments contemplated by this Section 2.21.
(de) Notwithstanding anything The terms and provisions of the New Revolving Commitments shall be identical to the contrary in this Agreementexisting Revolving Commitments. Each Increase and Joinder Agreement may, each without the consent of the parties hereto hereby agrees thatany other Lenders, on each Increased Facility Closing Date, effect such amendments to this Agreement shall be amended to and the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment other Loan Documents as may be effected necessary or appropriate, in writing by the Company. opinion of the Administrative Agent and to effect the Lenders participating in the relevant increase and furnished to the other parties heretoprovision of this Section 2.21.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any Borrower may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request, after the Closing Date and prior to the Revolving Maturity Date, the establishment of Incremental Revolving Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 shall not exceed $250,000,000. Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such increase and (iishorter period as may be agreed to by the Administrative Agent) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant date on which such notice is delivered to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (ii) the amount of the Incremental Revolving Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Revolving Commitment for each such [[NYCORP:3318923v15:3100C: 06/26/2012--05:12 p]] Lender or other Person (it being agreed that (x) each increase effected pursuant any Lender approached to this paragraph shall be provide any Incremental Revolving Commitment may elect or decline, in a minimum amount of at least $25,000,000 its sole discretion, to provide such Incremental Revolving Commitment and (y) no any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Administrative Agent).
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more than 4 Increased Incremental Revolving Facility Closing Dates may be selected Agreements executed and delivered by the Company after Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments, and the Effective Date. In connection with any increase described in this paragraph, Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) no event has occurred and is continuing, or would result from such Borrowing or from the Company shall provide application of the Administrative Agent with certificates and legal opinions as proceeds therefrom or from the Administrative Agent may reasonably requestissuance of such Letter of Credit that constitutes a Default or Event of Default, (ii) on the date of effectiveness thereof, the representations and warranties of the Loan Parties Borrower set forth in this Agreement and in the other Loan Documents Section 4.01 shall be true and correct in all material respects as though made on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the covenant set forth in Section 5.03, (iv) the Borrower shall make any payments required to be made in connection with such increaseIncremental Revolving Commitments and the related transactions under this Section 2.21, no Default or Event of Default and (v) the Borrower shall have occurred delivered to the Administrative Agent such legal opinions, board resolutions, secretary's certificates, officer's certificates and other documents of the types mentioned in Section 3.01(b), (c) and (d) as shall reasonably be continuingrequested by the Administrative Agent in connection with any such transaction. No Lender shall have Each Incremental Revolving Facility Agreement may, without the consent of any obligation Lender, effect only such amendments to participate this Agreement as may be necessary to give effect to the Incremental Revolving Commitment referenced therein and in any increase described event in this paragraph unless it agrees to do so in its sole discretiona manner consistent with Section 2.21(b).
(bd) Any additional bankUpon effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent i) such Incremental Revolving Lender shall not be unreasonably withheld), elects deemed to become be a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, and a “New Lender Supplement”)Revolving Lender” hereunder, substantially in and henceforth shall be entitled to all the form of Exhibit Jrights of, whereupon such bankand benefits accruing to, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes Lenders and to the same extent as if originally a party hereto Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and entitled other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the aggregate Revolving Commitments of all Revolving Lenders shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the benefits definition of this Agreementthe term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Letter of [[NYCORP:3318923v15:3100C: 06/26/2012--05:12 p]] Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Revolving Commitment Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(ce) Unless otherwise agreed by On the Administrative Agentdate of the effectiveness of any Incremental Revolving Commitments, on each Increased Facility Closing Date (i) the Borrowers Revolving Lender shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New LenderIncremental Revolving Lender holding such Incremental Revolving Commitments, and each such New Incremental Revolving Lender will automatically and without further act shall be deemed to have assumedpurchased from each Revolving Lender, a portion of such Lender’s interests in participations hereunder in outstanding Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit will be held by each Lender all the Revolving Lenders (including each such New LenderIncremental Revolving Lenders) will equal such Lender’s Applicable ratably in accordance with their Revolving Commitment Percentage after giving effect to the new effectiveness of such Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant Any Revolving Loans outstanding immediately prior to the preceding sentence date of the effectiveness of such Incremental Revolving Commitments that are Eurodollar Rate Loans shall equal the Eurocurrency Rate then applicable (except to the Eurocurrency extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Revolving Loans immediately prior to the date of the other Lenders effectiveness of such Incremental Revolving Commitments, in the same Eurocurrency Borrowing (or, each case until the expiration last day of the then-current Interest PeriodPeriod applicable to any such Loan, at which time such Revolving Loans will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Revolving Commitment Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other rate as Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurodollar Rate Loans are held by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Revolving Commitment Percentages. Any such assignments shall be agreed upon between effect in accordance with the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreementprovisions of Section 8.06, each of provided that the parties hereto hereby agrees consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 8.06(b) shall not apply thereto. Any Revolving Loans outstanding on the date of the effectiveness of such Incremental Revolving Commitments that are Base Rate Loans shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Revolving Commitment Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make Revolving Loans that are Base Rate Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Class and Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender's Incremental Revolving Commitment by the sum of all Revolving Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding Revolving Loans that are Base Rate Loans held by the Revolving lenders, in such amounts so that, on each Increased Facility Closing Dateafter giving effect thereto, this Agreement shall all Revolving Loans that are Base Rate Loans will be amended held by the Revolving Lenders in [[NYCORP:3318923v15:3100C: 06/26/2012--05:12 p]] accordance with their then-current Revolving Commitment Percentages. On the date of the effectiveness of such Incremental Commitments, the Borrower will pay to the extent (but only to Administrative Agent, for the extent) necessary to reflect the existence accounts of the incremental Commitments evidenced therebyRevolving Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Revolving Loans being prepaid. Any such deemed amendment may be effected in writing by the Company. the The Administrative Agent and the Lenders participating lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in the relevant increase and furnished this Agreement shall not apply to the other parties heretotransactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Revolving Commitments, in each case advising the Lenders of the details thereof and of the Revolving Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.21(e).
Appears in 1 contract
Samples: Credit Agreement (Legg Mason, Inc.)
Incremental Revolving Commitments. (a) The Company and any Borrower may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request during the Revolving Commitment Period the establishment of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments to be established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Incremental Revolving Commitments being requested (which shall be an amount not less than $5,000,000) and (iii) the identity of each Person proposed to become an Incremental Revolving Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (y) any Person that the Borrower proposes to become an Incremental Revolving Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan, must be approved by the Administrative Agent, each Issuing Bank and the Swing Line Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and DMFIRM #406105327 v12 139
(d) Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (ii) the applicable Increased Facility Closing Date. Notwithstanding Maximum Credit shall be increased by the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant such Incremental Revolving Commitment, in each case, subject to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each further increase effected pursuant or reduction from time to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions time as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as definition of the Increased Facility Closing Date (orterm “Revolving Commitment”. For the avoidance of doubt, if upon the effectiveness of any such representation or warranty is expressly stated to have been made as of a specific earlier dateIncremental Revolving Commitment, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent Revolving Exposure of the Company Incremental Revolving Lender holding such Commitment, and the Administrative Agent (which consent Pro Rata Shares of all the Revolving Lenders, shall not automatically be unreasonably withheld), elects adjusted to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementgive effect thereto.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Incremental Revolving Commitments. (a) The Company and At any time during the Availability Period, the Borrower may request from time to time from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, the L/C Issuer, the Swingline Lender (in each case, such approval not to be unreasonably withheld or delayed) and the Borrower (but subject to the conditions set forth in clause (b) below) that the Aggregate Revolving Commitments be increased (each such increase, an “Increase”) by additional revolving commitments (the “Incremental Revolving Commitments”); provided, that, (x) the aggregate amount of all Incremental Revolving Commitments effected pursuant to this Section 2.16 shall not exceed $25,000,000 and (y) the Borrower may not request an Increase on more than three occasions during the Availability Period. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Applicable Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Applicable Percentage of such requested Increase or more than its Applicable Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their respective Applicable Percentages), and to the extent, ten (10) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the full amount of such Increase, then the Borrower (or the Administrative Agent, at the request of the Borrower and subject to any agreed upon compensation), shall (or, in the case of the Administrative Agent, shall use commercially reasonable efforts to) arrange for any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a new Lender in connection with the proposed Increase. Any Increase shall be in an amount of at least $5,000,000 (or, if the unused capacity hereunder is less than $5,000,000, the amount of such remaining capacity) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolving Commitments exceed the $25,000,000 during the term of this Agreement. Each request for an Increase delivered by the Borrower to the Administrative Agent shall set forth the amount and proposed terms of the Increase. Neither any Arranger nor any Lender shall have any obligation or responsibility for arranging any Increase without its prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments in connection therewith:
(i) any Incremental Revolving Commitments under such Increase shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing Revolving Facility; provided, that, any such Increase may provide for terms (including New interest rate) more favorable to the Lenders but without providing the Incremental Revolving Commitments thereunder if all then-existing Revolving Commitments are also provided the benefit of such more favorable terms (and the consent of any other Lender) may from time existing Revolving Lender shall not be required to time agree implement such terms); provided further, that any upfront fees shall be agreed between the Borrower and the Lenders providing such Increase and shall not be required to be paid to Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of not providing such increase and Increase;
(ii) the applicable Increased Facility Closing Date. Notwithstanding Borrower shall have delivered a written request for such Increase at least 10 Business Days prior to the foregoingrequested establishment of such Increase (or such later date as may be reasonably approved by the Administrative Agent), (i) without which request shall set forth the consent amount and proposed terms of the Required LendersIncrease;
(iii) (A) each Lender agreeing to such Increase, the aggregate amount of incremental Commitments obtained after Borrower and the Effective Date pursuant to this paragraph Administrative Agent shall not exceed $100,000,000 and have signed an Increase Joinder (ii) without any Increase Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.16 (xincluding the preceding clause (ii))) each increase effected or such other commitment or joinder agreement as is reasonably acceptable to the Administrative Agent, (B) the Borrower shall have executed any Notes requested by any Lender in connection with the Incremental Revolving Commitments established pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 such Increase, and (yC) no more than 4 Increased Facility Closing Dates may be selected the Loan Parties shall have delivered any legal opinions, resolutions and customary secretary’s and closing certificates requested by the Company after Administrative Agent. Notwithstanding anything to the Effective Date. In contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to establish such Increase;
(iv) (A) in all cases other than an Increase made in connection with any increase described in this paragrapha Limited Condition Acquisition for which the Borrower has made an LCA Election, (i) immediately after giving pro forma effect to such Increase and the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestuse of proceeds thereof, (ii) the representations and warranties of the Loan Parties set forth in this Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date on which such Increase is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date and (B) in connection with an Increase made in connection with a Limited Condition Acquisition for which the Borrower has made an LCA Election, (1) the Specified Representations shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date on which such Increase is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date and (2) the Specified Acquisition Agreement and in the other Loan Documents Representations shall be true and correct on and as of the Increased Facility Closing Date date Revolving Loans are made under the Incremental Revolving Commitments established pursuant to such Increase;
(orv) (A) in all cases other than an Increase made in connection with a Limited Condition Acquisition for which the Borrower has made an LCA Election, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving pro forma effect to such increaseIncrease and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
continuing and (bB) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described an Increase made in Section 2.23(a) shall execute connection with a New Lender Supplement (eachLimited Condition Acquisition for which the Borrower has made an LCA Election, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and there shall be bound by and entitled to (1) no Default or Event of Default as of the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing LCA Test Date and (y2) the aggregate amount no Specified Event of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender Default immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase Increase and each the use of proceeds thereof);
(vi) the Borrower shall have paid any applicable upfront and/or arrangement fees in connection with such deemed assignment and assumption of participations, Increase;
(vii) the percentage Administrative Agent shall have received such amendments to the Collateral Documents as the Administrative Agent may reasonably require that are necessary to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the aggregate Loan Documents) after giving effect to such Increase; and
(viii) upon each Increase in accordance with this Section 2.16, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including each any newly added Lenders) in accordance with the Lenders’ respective revised Applicable Percentages, pursuant to procedures reasonably determined by the Administrative Agent in consultation with the Borrower.
(c) Upon the effectiveness of any Increase, all references in this Agreement and any other Loan Document to the Revolving Commitments and Aggregate Revolving Commitments shall be deemed, unless the context otherwise requires, to include the Incremental Revolving Commitments established pursuant to such New LenderIncrease and any accompanying amendments effected through the Increase Joinder.
(d) will equal such Lender’s Applicable Percentage The Revolving Loans and Revolving Commitments established pursuant to this Section 2.16 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Bandwidth Inc.)
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments may, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying (i) from time to time, request that the total Revolving Commitments be increased; provided that the aggregate amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without 250,000,000. Such notice shall set forth the consent amount of the Administrative Agent, requested increase in the Revolving Commitments (x) each increase effected pursuant to this paragraph which shall be in a minimum amount increments of at least $25,000,000 10,000,000) and the date on which such increase is requested to become effective (y) no which shall be not less than 10 Business Days nor more than 4 Increased Facility Closing Dates may be selected by the Company 60 days after the Effective date of such notice and which, in any event, must be on or prior to the Maturity Date). In connection with any increase described in this paragraph, The Company may arrange for one or more banks or other entities (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution bank or other entity whichbeing called an “Augmenting Lender”), with which may include any Lender, to extend Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the requested increase; provided that, notwithstanding the foregoing, no Person shall become a Lender without the prior written consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) . The Company and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Commitment and/or its status as a New Lender Supplement (each, a “New Lender Supplement”), substantially hereunder. Any increase in the form of Exhibit JRevolving Commitments may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, whereupon such bankor chooses not to arrange for, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementAugmenting Lenders.
(cb) Unless otherwise agreed by Each of the parties hereto hereby agrees that the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference Agent may take any and all actions as may be reasonably necessary to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such ensure that, after giving effect to such Commitment any increase and each such deemed assignment and assumption of participationsin the Revolving Commitments pursuant to this Section 2.23, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans (if any) are held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the Lenders pro rata in accordance with their new Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment This may be effected in writing by accomplished at the Company. reasonable discretion of the Administrative Agent and (i) by requiring the outstanding Loans to be prepaid with the proceeds of new Loans, (ii) by causing Lenders participating that are not Augmenting Lenders to assign, at the Company’s expense, portions of their outstanding Loans to Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in the relevant increase and furnished this paragraph (b) shall be subject to the other parties heretoSection 2.15, but otherwise without premium or penalty.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Fortune Brands Inc)
Incremental Revolving Commitments. Borrower may by written notice (it being understood and agreed that Borrower shall not deliver more than three such written notices) to Administrative Agent elect to request the establishment of new revolving credit commitments (collectively, the “Incremental Revolving Commitments” and each an “Incremental Revolving Commitment” and the loans thereunder, when borrowed, the “Incremental Revolving Loans”) in an aggregate amount not to exceed the sum of (a) The Company $400,000,000 (such amount to be increased to up to $500,000,000 in connection with a Material Acquisition) minus (b) the aggregate amount of Indebtedness of Holdings and its Subsidiaries incurred pursuant to Section 6.1(m)(ii) and Section 6.1(m)(iii)); provided that no Incremental Revolving Commitments may be incurred if, at the time of such incurrence, any Indebtedness remains outstanding pursuant to Section 6.1(m)(i). Each such notice shall specify (A) the date (the “Incremental Revolver Date”) on which Borrower proposes that such Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to Administrative Agent, (B) the amount of such Incremental Revolving Commitments (which shall not be less than $100,000,000), (C) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Lender”) to whom Borrower proposes any portion of such Incremental Revolving Commitments be allocated and the amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Commitments in its sole discretion and any one Lender approached to provide all or more Lenders a portion of such Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment, and (including New Lenders but D) the identity of the Person who will be the borrower (the “Revolver Borrower”) under such Incremental Revolving Commitments (provided that such Person shall be the Borrower or a Credit Party that is organized in a jurisdiction that is reasonably acceptable to the Administrative Agent). Such Incremental Revolving Commitments shall become effective as of the applicable Incremental Revolver Date; provided that (1) no Event of Default shall exist on such Incremental Revolver Date after giving effect to such Incremental Revolving Commitments and the funding of the Incremental Revolving Loans thereunder; (2) the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects (and in all respects to the extent that such representation and warranty is already qualified by materiality) on and as of such Incremental Revolver Date to the same extent as though made on and as of such date, except to Incremental Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by Borrower, the Revolver Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent. The Incremental Amendment may, without the consent of any other Credit Party, Agent or Lender) , effect such amendments to this Agreement and the other Credit Documents as may from time be necessary or appropriate, in the reasonable opinion of Administrative Agent, Borrower and the Revolver Borrower, to time agree that such Lenders shall obtain or increase effect the amount provisions of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying this Section 2.23. The Incremental Amendment may include, among other things, customary provisions regarding (i) the amount letters of such increase credit and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection reimbursement obligations with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestrespect thereto, (ii) the representations and warranties cash collateral obligations with respect to letters of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (orcredit, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at swing line loans and participations therein, (iv) the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent jurisdiction of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date Revolver Borrower and (yv) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Incremental Revolving Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)that are Defaulting Lenders.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, ,
(i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Eurodollar Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Swingline Loans, Protective Advances and Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Swingline Loans, Protective Advances and Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Brunswick Corp)
Incremental Revolving Commitments. (a) The Company Subject to the terms and any one or more Lenders (including New Lenders but without conditions set forth herein, the consent of any other Lender) may Borrowers shall have the right, from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering upon at least ten Business Days’ prior written notice to the Administrative Agent (an Increased Facility Activation Notice specifying “Incremental Request”), to increase the Aggregate Revolving Commitments (the “Incremental Revolving Commitments”); provided, that, each Incremental Request with respect to Incremental Revolving Commitments shall be subject to satisfaction of the following conditions precedent:
(a) after giving to such Incremental Revolving Commitments, the Aggregate Revolving Commitments shall not exceed $1,000,000,000;
(b) on the date on which the applicable Incremental Revolving Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Revolving Commitments (assuming that the full amount of such Incremental Revolving Commitments shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing;
(c) the representations and warranties of each Loan Party contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date on which such Incremental Revolving Amendment is to become effective, except to the extent that such representations and warranties (i) the amount of are qualified by materiality in which case such increase representations and warranties shall be true and correct in all respects and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoingspecifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;
(id) without the consent of the Required Lenders, the aggregate amount of incremental such Incremental Revolving Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement 10,000,000 and in the other Loan Documents shall be true and correct on and integral multiples of $5,000,000 in excess thereof (or such lesser amounts as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent);
(e) such Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, on each Increased Facility Closing Date including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01;
(if) the Borrowers Administrative Agent shall borrow have received additional commitments in a corresponding amount of such requested Incremental Revolving Loans under the relevant increased Commitments from each either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender participating in shall be required to provide an additional commitment); and
(g) the relevant increase in an amount determined by reference Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the amount corporate or other necessary authority for such Incremental Revolving Commitments and the validity of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increasedIncremental Revolving Commitments, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Commitments shall be evidenced by an amendment (iian “Incremental Revolving Amendment”) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lenderthis Agreement, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant modifications permitted by this Section 2.16 (and subject to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders limitations set forth in the same Eurocurrency Borrowing (orimmediately preceding paragraph), until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing executed by the Company. Loan Parties, the Administrative Agent and each Lender providing a portion of the Lenders participating in Incremental Revolving Commitments; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Revolving Amendment shall also require such amendments to the relevant increase Loan Documents, and furnished such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Revolving Amendment, nor any such amendments to the other parties heretoLoan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Revolving Commitments, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Revolving Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth above and as such other conditions as requested by the Lenders under the Incremental Revolving Commitments established in connection therewith.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without Any time after the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase Closing Date, the amount of their Commitments by executing and delivering Borrower may, upon written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, increase the Aggregate Revolving Commitments hereunder as provided in this Section 2.01(d) (the “Incremental Revolving Commitments”); provided that:
(i) the aggregate principal amount of all the Incremental Revolving Commitments established after the Closing Date, together with the aggregate principal amount of all the 5-Year Incremental Revolving Commitments established under the 5-Year Credit Agreement at or prior to such increase and time, will not exceed $500,000,000;
(ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender continuing or shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, result after giving effect to any such Commitment increase and each such deemed assignment and assumption of participations, Incremental Revolving Commitments;
(iii) the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect conditions to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans making of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as a Credit Extension under Section 5.02 shall be agreed upon between the applicable Borrower and the relevant Lender).satisfied;
(div) Notwithstanding anything to the contrary in this AgreementBorrower will provide supporting resolutions, each of the parties hereto hereby agrees thatlegal opinions, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment promissory notes and other items as may be effected in writing reasonably required by the Company. the Administrative Agent and the Revolving Lenders participating in the relevant increase and furnished providing Incremental Revolving Commitments;
(v) any new Revolving Lender providing an Incremental Revolving Commitment must be reasonably acceptable to the Administrative Agent, each of the L/C Issuers, if any, and the Borrower;
(vi) Revolving Lenders providing Incremental Revolving Commitments pursuant to this Section 2.01(d) will provide a Revolving Lender Joinder Agreement or other parties hereto.agreement reasonably acceptable to the Administrative Agent;
(vii) additional Incremental Revolving Commitments will be in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof; and
(viii) if any Revolving Loans are outstanding at the time of any such increase, the Borrower will make such payments and adjustments on the Revolving Loans (including payment of any break-funding amounts owing under
Appears in 1 contract
Samples: Credit Agreement (Directv)
Incremental Revolving Commitments. (a) The Company Borrower and any one or more Lenders (including New Lenders but without reasonably acceptable to the consent of any other LenderAdministrative Agent and the Issuing Bank) may from time to time agree that such Lenders shall obtain or increase the amount of their incur Incremental Revolving Commitments by executing and delivering to the Administrative Agent an Increased Facility Incremental Revolving Commitment Activation Notice specifying (i) the amount of such increase the Incremental Revolving Commitments and (ii) the applicable Increased Facility Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (i1) without the consent of the Required Lenders, (A) the aggregate principal amount of incremental Incremental Revolving Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 100,000,000, (B) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, and (iiC) without after giving pro forma effect thereto and to any concurrent transactions, the consent of Consolidated Leverage Ratio shall be less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, and (2) unless otherwise agreed by the Administrative Agent, (xA) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (yB) no more than 4 Increased Facility Closing Dates four Incremental Revolving Commitment Activation Notices may be selected delivered by the Company Borrower after the Effective Closing Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No existing Lender shall have any obligation to participate in incur any increase described in this paragraph Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) Any Incremental Revolving Commitment shall be on the same terms, pursuant to the same documentation, and treated the same as the existing Revolving Facility and shall be considered to be part of the Revolving Facility.
(c) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), Person that elects to become a “Lender” new Lender under this Agreement in connection with any transaction described in Section 2.23(a2.02(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit JF-1, whereupon such bank, financial institution or other entity Person (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementAgreement and the other Loan Documents.
(cd) Unless otherwise agreed by the Administrative Agent, on Upon each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating increase in the relevant increase in an amount determined by reference establishment of any Incremental Revolving Commitments pursuant to the amount of each Type of Loan (andthis Section 2.02, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of the Incremental Revolving Commitments (each an “Incremental Revolving Lender”) in respect of such increase, and each such New Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Incremental Revolving Lender) will equal such Lender’s Applicable Revolving Commitment Percentage and if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the new CommitmentsRevolving Loans being prepaid. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in the relevant increase and furnished this Agreement shall not apply to the other parties heretotransactions effected pursuant to the immediately preceding sentence. If there is a new Revolving Borrowing on such Incremental Revolving Commitment Closing Date, the Revolving Lenders after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company At any time and any from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more Lenders increases in the aggregate amount of the Revolving Commitments (including New Lenders but each such increase, a “Revolving Commitment Increase”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) after giving effect to such Revolving Commitment Increase and the application of the proceeds therefrom and assuming that the full amount of such Revolving Commitment Increase shall have been funded on such date, the Borrower shall be in compliance, on a Pro Forma Basis, with the covenants contained in Sections 6.12 and 6.13 and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by
Section 5.01 (a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period). Notwithstanding anything to contrary herein, the aggregate principal amount of all Revolving Commitment Increases incurred pursuant to this Section 2.22 shall not exceed the sum of (x) $250,000,000 (the “Dollar-Based Incremental Availability”) and (y) any amount, so long as the Secured Leverage Ratio, calculated on a Pro Forma Basis as of the most recently ended fiscal quarter of the Borrower after giving effect to the applicable Revolving Commitment Increase and the application of proceeds therefrom and assuming that the full amount of such Revolving Commitment Increase shall have been funded on such date, is no greater than 3.50:1.00 (the “Ratio-Based Incremental Availability”); it being understood that (i) if the Borrower incurs any Revolving Commitment Increase using Dollar-Based Incremental Availability simultaneously (or substantially simultaneously) with the incurrence of any Revolving Commitment Increase using Ratio-Based Incremental Availability, the Secured Leverage Ratio with respect to the Ratio-Based Incremental Availability shall be calculated taking into account such Revolving Commitment Increase incurred using the Dollar-Based Incremental Availability (and assuming all such Revolving Commitments shall have been funded) and (ii) each Revolving Commitment Increase will be deemed to be incurred as a Revolving Commitment Increase using the Dollar-Based Incremental Availability (to the extent compliant therewith) until the Dollar-Based Incremental Availability is exhausted. Each Revolving Commitment Increase shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the Revolving Commitment Increases permitted above.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Any additional bank, financial institution, existing Lender or other Person that elects to extend Revolving Commitment Increases shall be reasonably satisfactory to the Borrower, the Administrative Agent, each Issuing Bank and each Swingline Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Revolving Commitment Increase, unless it so agrees. Commitments in respect of any Revolving Commitment Increase shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Revolving Commitment) under this Agreement upon the effectiveness of the applicable Incremental Facility Amendment. Notwithstanding anything in this Agreement to the contrary, an Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant effect such amendments to this paragraph shall not exceed $100,000,000 and (ii) without Agreement or any other Loan Document as may be necessary or appropriate, in the consent opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the effective date thereof of each of the conditions set forth in Section 4.02 (x) each increase effected pursuant it being understood and agreed that all references to this paragraph a Borrowing in Section 4.02 shall be in a minimum amount deemed to refer to the applicable Incremental Facility Amendment).
(c) On the date of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with effectiveness of any increase described in this paragraphRevolving Commitment Increase, (i) the Company aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestbe deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the representations and warranties effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Loan Parties set forth in this Agreement and in Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect to the other Loan Documents shall be true and correct on and as effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Increased Facility Closing Date Existing Revolving Borrowings, (or, if any such representation or warranty is expressly stated iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment prior to have been made as of a specific earlier date, as the effectiveness of such specific dateRevolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) at above, the time Administrative Agent shall pay to each applicable Lender the portion of and immediately such funds that is equal to the amount, if any, by which (A) (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings, exceeds (B) (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
Revolving Commitment Increase) multiplied by (b2) Any additional bank, financial institution or other entity which, with the consent aggregate principal amount of the Company Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (which consent and the Borrower shall not be unreasonably withhelddeliver such Borrowing Request), elects (vi) each Lender shall be deemed to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement hold its Applicable Percentage of each Resulting Revolving Borrowing (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and calculated after giving effect to the same extent as if originally a party hereto effectiveness of such Revolving Commitment Increase) and (vii) the Borrower shall be bound by pay each Lender any and entitled all accrued but unpaid interest on its Loans that comprised the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date clause (i) above shall be subject to compensation by the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference Borrower pursuant to the amount provisions of Section 2.15 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Type of Loan (andRevolving Commitment Increase pursuant to this Section, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Revolving Commitment Increase Lender, and each such New Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment increase Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and participations hereunder in Swingline Loans, in each case held by each Lender (including each such New Revolving Commitment Increase Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)Percentage.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering Upon notice to the Administrative Agent an Increased Facility Activation Notice specifying (iwhich shall promptly notify the Lenders) and subject to the amount terms and conditions of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoingthis Section 2.22, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained at any time after the Effective Date pursuant and prior to this paragraph shall the date that is twenty Business Days following the Effective Date, the Borrower may solicit the existing Lenders or prospective lenders determined by the Borrower in consultation with the Lead Arrangers to provide increases in the commitments to the Revolving Credit Facility (such increases, “Incremental Revolving Commitments”) in an aggregate amount, taken together with the Commitments in effect on the Effective Date, that does not exceed $100,000,000 and (ii) without the consent of the Administrative Agent500,000,000, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected on terms agreed by the Company after Borrower and the Effective Date. In connection with any increase described in lender(s) providing the respective Incremental Revolving Commitments (subject to the following clauses of this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.22).
(b) Any additional bank[Reserved],
(c) Existing Lenders may, financial institution but shall not be obligated to without their prior written consent, provide a commitment and/or make any loans pursuant to any Incremental Revolving Commitment, and nothing contained herein constitutes, or other entity whichshall be deemed to constitute, a commitment with respect to any Incremental Revolving Commitment.
(d) The notice from the consent of the Company and Borrower to the Administrative Agent delivered pursuant to Section 2.22(a) shall set forth the requested amount of the Incremental Revolving Commitments. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than five Business Days (or such shorter period acceptable to the Administrative Agent, but no less than three Business Days) from the date of delivery of such notice to the Lenders). Incremental Revolving Commitments (or any portion thereof) may be provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such bank or other financial institution, an “Incremental Lender”), provided that the Administrative Agent shall have consented (which consent shall not be unreasonably withheld)withheld or delayed) to such Lender’s or Incremental Lender’s, elects as the case may be, providing such Incremental Revolving Commitment if such consent would be required under Section 9.04 for an assignment of Loans to such Lender or Incremental Lender, as the case may be. Any Lender not responding within such time period shall be deemed to have declined to provide any portion of such Incremental Revolving Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(e) Incremental Revolving Commitments shall become a “effective, and commitments thereunder shall become Commitments (and in the case of any Incremental Revolving Commitment in respect of the Revolving Credit Facility to be provided by an existing Revolving Credit Lender” , shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement in connection with pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Revolving Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Commitment Amendment may, without the consent of any transaction described in Section 2.23(a) shall execute a New Lender Supplement (eachother Lenders, a “New Lender Supplement”)effect such amendments to any Loan Documents as may be necessary or appropriate, substantially in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22.
(f) If any Incremental Revolving Commitments are added in accordance with this Section 2.22, the Borrower, in consultation with the Administrative Agent, shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such Incremental Revolving Commitments. The Administrative Agent shall promptly notify the Lenders of the final allocation of such Incremental Revolving Commitments and the Incremental Commitments Effective Date.
(g) The effectiveness of any Incremental Commitment Amendment shall, unless otherwise agreed to by the Administrative Agent, each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to the satisfaction on the Incremental Commitments Effective Date of each of the following conditions:
(i) the Administrative Agent shall have received on or prior to the Incremental Commitments Effective Date each of the following, each dated the Incremental Commitments Effective Date unless otherwise indicated or agreed to by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent: (x) the applicable Incremental Commitment Amendment; and (y) customary legal opinions and certified copies of Exhibit Jresolutions of the board of directors of each Loan Party approving the execution, whereupon delivery and performance of the Incremental Commitment Amendment; and
(ii) no Event of Default exists or would exist after giving effect thereto and all representations and warranties of the Borrower under this Agreement shall be true and correct in all material respects immediately before and after giving effect thereto (except to the extent that such bankrepresentations and warranties specifically refer to an earlier date, financial institution in which case they shall be true and correct in all material respects as of such earlier date).
(h) On the Incremental Commitments Effective Date, each Lender or other entity Incremental Lender which is providing a portion of any Incremental Revolving Commitments (a “New Lender”i) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by Agreement and the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of other Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, Documents and (ii) shall have an Incremental Revolving Commitment which shall become a Commitment hereunder.
(i) Upon each establishment of Incremental Revolving Commitments pursuant to this Section 2.22 if, on the date of effectiveness of such Incremental Revolving Commitments, there are any Revolving Loans outstanding, the Administrative Agent and the Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to (including each New existing Lender, if any, and each such New Lender will automatically and without further act be deemed to have assumedIncremental Lender, if any, in each case providing a portion of such Incremental Revolving Commitments) having a pro-rata share of the outstanding Revolving Loans based on each such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, Applicable Revolving Percentage immediately after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in the relevant increase and furnished this Agreement shall not apply to any transaction that may be effected pursuant to the other parties heretoimmediately preceding sentence.
(j) The provisions of this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary.
Appears in 1 contract
Samples: Revolving Credit Agreement (Huntington Ingalls Industries, Inc.)
Incremental Revolving Commitments. (a) The Company and any may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request the establishment of Incremental Revolving Commitments; provided that the aggregate amount of all the Incremental Revolving Commitments established hereunder shall not exceed US$750,000,000 less, solely during any Non-Investment Grade Covenant Period, the aggregate principal amount of Indebtedness then outstanding under Section 6.01(b)(vii). Each such notice shall specify (i) the amount of such increase date on which the Company proposes that the Incremental Revolving Commitments shall be effective, and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent amount of the Required LendersIncremental Revolving Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant in its sole discretion, to this paragraph shall not exceed $100,000,000 provide such Incremental Revolving Commitment and (iiy) without any Person that the Company proposes to become an Incremental Revolving Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(xb) each increase The terms and conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans.
(c) The Incremental Revolving Commitments shall be effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 one or more Incremental Facility Agreements executed and (y) no more than 4 Increased Facility Closing Dates may be selected delivered by the Company after Company, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Effective Date. In connection Administrative Agent (with any increase described in this paragraphthe Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Revolving Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the Company shall provide date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Revolving Commitments and the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestmaking of any Loans thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date of effectiveness, except in the Increased Facility Closing Date (or, if case of any such representation or warranty is that expressly stated relates to have been made as of a specific earlier prior date, in which case such representation or warranty shall be so true and correct on and as of such specific prior date, and (iii) the Company shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents and customary reaffirmations by the Guarantors as shall have been reasonably requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Company, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Revolving Lender” and a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Revolving Lenders and Lenders hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Revolving Lenders and Lenders hereunder and under the other Loan Documents and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Applicable Percentages of all the Revolving Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds and in the applicable currency an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds and in the applicable currency an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) at the time of and immediately after giving effect to such increaseabove, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned pay to each New Lender, and each such New Revolving Lender will automatically and without further act be deemed to have assumed, a the portion of such Lender’s participations hereunder in outstanding Letters funds that is equal to the difference between (A) the product of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender1) will equal such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Existing Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Resulting Revolving Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the applicable Borrowers shall be deemed to have requested new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall, on behalf of all applicable Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Borrowers shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The Eurocurrency Rate applicable deemed payments of the Existing Revolving Borrowings made pursuant to any Eurocurrency Loan borrowed clause (i) above shall be subject to compensation by the Borrowers pursuant to the preceding sentence shall equal provisions of Section 2.13 if the Eurocurrency Rate then applicable to the Eurocurrency Loans date of the effectiveness of such Incremental Revolving Commitments occurs other Lenders in than on the same Eurocurrency Borrowing (or, until the expiration last day of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)Period relating thereto.
(df) Notwithstanding anything to The Administrative Agent shall notify the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing Lenders promptly upon receipt by the Company. the Administrative Agent of any notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of any Incremental Revolving Commitments, in each case advising the Lenders participating in of the relevant increase details thereof and furnished to of the other parties heretoApplicable Percentages of the Revolving Lenders after giving effect thereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company US Administrative Borrower may, at any time and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering prior to the Administrative Agent Maturity Date, by notice to Agent, request an Increased Facility Activation Notice specifying increase in the Revolver Commitments of the Lenders (the “Incremental Revolving Commitments”), subject to the terms and conditions set forth herein, in an aggregate principal amount for all such Incremental Revolving Commitments of up to $30,000,000 to be effective as of a date (the “Increase Date”) specified in the related notice to Agent; provided, however, that:
(i) the any Incremental Revolving Commitments requested hereby shall be in an amount of such increase and not less than $5,000,000;
(ii) on the date of any request by the Borrowers for Incremental Revolving Commitments and on the related Increase Date, the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties conditions set forth in this Agreement and in the Section 3.2 (other Loan Documents than Section 3.2(b)) shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and satisfied;
(iii) at on the time date of any request by the Borrowers for any Incremental Revolving Commitments and immediately after giving effect to such increaseon the related Increase Date, no Default or Event of Default shall have occurred and be continuing. No Lender continuing and no Event of Default shall have result from such Incremental Revolving Commitments;
(iv) immediately prior to the incurrence of the Incremental Revolving Commitments, and after giving effect thereto, the representations and warranties set forth in Article IV shall be true and correct in all material respects (without duplication of materiality qualifiers) (other than any obligation such representations or warranties that, by their terms, refer to participate a specific date other than the applicable Increase Date, in any increase described which case as of such specific date;
(v) the proceeds of such Incremental Revolving Commitments shall be used for acquisitions and other investments, capital expenditures, working capital, and other general corporate purposes in this paragraph unless it agrees to do so in its sole discretion.accordance with, and as permitted by, the terms of the Loan Documents;
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in In connection with any transaction described Incremental Revolving Commitments, this Agreement may be amended in a writing executed and delivered by the Administrative Borrower and Agent to reflect any technical changes necessary to give effect to such increase in accordance with its terms as set forth herein, including, without limitation, amending and restating or supplementing Schedule C-1 to reflect the new Revolver Commitments of the Lenders (including any Incremental Revolver Commitments of the Incremental Revolving Lenders). This Section 2.16(b) shall supersede any provisions in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and 13.1 to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementcontrary.
(c) Unless otherwise agreed Agent shall promptly notify the Lender Group of a request by the Administrative AgentBorrower for Incremental Revolving Commitments, on each Increased Facility Closing Date which notice shall include (i) the Borrowers shall borrow Revolving Loans under proposed amount, (ii) the relevant increased Commitments from each Lender participating in proposed Increase Date, (iii) whether the relevant proposed increase in an amount determined by reference should be made to the amount of each Type of Loan UK Revolver Commitments or the US Revolver Commitments (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increasedboth), and (iiiii) each the date by which Lender immediately Parties wishing to participate in the Incremental Revolving Commitments must commit to an Incremental Revolving Commitment (the “Incremental Commitment Date”). Incremental Revolving Commitments may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to make any Incremental Revolving Commitment, but the Borrowers will have an obligation to approach the existing Lender Group first, prior to such increase will automatically and without further act be deemed to have assigned to each New any Additional Lender, to provide any Incremental Revolving Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Incremental Revolving Commitment, an “Incremental Revolving Lender” and, collectively, the “Incremental Revolving Lenders”); provided that Agent, the Swing Lender and each Issuing Bank shall have consented (not to be unreasonably conditioned, withheld or delayed) to such New Additional Lender’s providing such Incremental Revolving Commitments to the extent such consent, if any, would be required under Section 13.1 for an assignment of Revolver Commitments to such Additional Lender. If any Incremental Revolving Commitments are provided in accordance with this Section 2.16, no Person who is not at the time a Lender will automatically and without further act be deemed selected to provide the Incremental Revolving Commitments until the then-existing Lenders have assumed, been provided with a reasonable opportunity to provide all or a portion of such Incremental Revolving Commitments; provided that none of the then-existing Lenders will be required to provide any such Incremental Revolving Commitments without their respective consent. For the avoidance of doubt, no Loan Party or Subsidiary thereof or any Affiliate of the foregoing shall be an Incremental Revolving Lender.
(d) On the applicable Increase Date, each Additional Lender shall be or become a Lender party to this Agreement as of such applicable Increase Date by delivering an Incremental Agreement as of such Increase Date;
(e) The Incremental Revolving Commitments shall be subject to the prior satisfaction of conditions precedent to be agreed between the Administrative Borrower and the Incremental Revolving Lenders providing such Incremental Revolving Commitments, including, without limitation, that Agent shall have received on or before the Increase Date the following, each dated such date:
(i) (A) a certificate of an Authorized Person certifying to resolutions of such Loan Party’s participations hereunder Board of Directors or sole member, as applicable, approving the Incremental Revolving Commitments, the borrowing of Revolving Loans thereunder and the corresponding modifications to this Agreement and such other matters as requested by Agent and (B) if requested by Agent, an opinion of counsel for the Borrowers, in form and substance reasonably satisfactory to Agent;
(ii) an Incremental Agreement from each Additional Lender in form and substance reasonably satisfactory to Agent (each, an “Incremental Agreement”), duly executed by such Additional Lender, Agent (at the direction of the Required Lenders) and the Administrative Borrower; and
(iii) such other documents, certificates, opinions, or other items (that are substantially consistent with the items delivered on the Closing Date) as may be reasonably requested by Agent or the Incremental Revolving Lenders providing such Incremental Revolving Commitments;
(f) On the applicable Increase Date, upon fulfillment of the conditions set forth in Section 2.16(e), Agent shall notify the Lender Group (including each Additional Lender) and the Administrative Borrower of the incurrence of the Incremental Revolving Commitments to be effected on the related Increase Date and shall record in the Register the relevant information with respect to the Incremental Revolving Lenders on such date.
(g) Upon any Increase Date on which any Incremental Revolving Commitments are effected if, on such Increase Date, there are any Revolving Loans outstanding, each of the Lenders that has an existing Revolver Commitment or Revolving Loan, as applicable, shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each such Lender, at par, such interests in the Revolving Loans outstanding Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such Commitment increase assignments and each purchases, such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Revolving Loans will be held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage the Lenders with existing Revolver Commitments or Revolving Loans, as applicable, and Incremental Revolving Lenders ratably in accordance with their Revolver Commitments after giving effect to the new addition of such Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any Borrower may on one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments occasions, by executing and delivering written notice to the Administrative Agent an Increased Facility Activation Notice specifying Agent, request during the Revolving Commitment Period the establishment of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments to be established hereunder on any date shall not exceed the Incremental Amount as of such date. Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such increase and (iishorter period as may be agreed to by the Administrative Agent) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant date on which such notice is delivered to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties amount of the Loan Parties set forth in this Agreement and in the other Loan Documents Incremental Revolving Commitments being requested (which shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific datean amount not less than $5,000,000) and (iii) the identity of each Person proposed to become an Incremental Revolving Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (y) any Person that the Borrower proposes to become an Incremental Revolving Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan, must be approved by the Administrative Agent, each Issuing Bank and the Swing Line Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the time other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing. No Lender continuing and the representations and warranties of each Credit Party set forth in the Credit Documents shall have any obligation to participate be true and correct (A) in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent case of the Company representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the condition set forth in clause (which consent i) above and (iii) the Borrower shall not have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be unreasonably withheld), elects to become a “Lender” requested (consistent in all material respects with the documents delivered under this Agreement Section 3.1 on the Closing Date) by the Administrative Agent in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (eachsuch transaction. Each Incremental Facility Agreement may, a “New Lender Supplement”)without the consent of any Lender, substantially effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the form opinion of Exhibit Jthe Administrative Agent and the Borrower, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to give effect to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(cd) Unless otherwise agreed Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (ii) the Maximum Credit shall be increased by the Administrative Agentamount of such Incremental Revolving Commitment, on in each Increased Facility Closing Date case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments:
(i) the Borrowers shall borrow aggregate principal amount of the Revolving Loans under (the relevant increased “Existing Revolving Borrowings”) outstanding immediately prior to the effectiveness of such Incremental Revolving Commitments from shall be deemed to be repaid,
(ii) each Incremental Revolving Lender participating shall pay to the Administrative Agent in the relevant increase in same day funds an amount determined by reference equal to the difference, if positive, between:
(A) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of each Type the Resulting Revolving Borrowings (as hereinafter defined) and
(B) the product of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on Lender’s Pro Rata Share of such Increased Facility Closing Date and Class (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such effectiveness being deemed to be zero) multiplied by (y) the aggregate principal amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and the Existing Revolving Borrowings,
(iii) after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Lender immediately the portion of such funds that is equal to the difference, if positive, between,
(A) the product of (1) such Lender’s Pro Rata Share (calculated without giving effect to such effectiveness, with such Pro Rata Share for any Incremental Revolving Lender that did not have a Revolving Commitment prior to such increase will effectiveness being deemed to be zero) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and
(B) the product of (1) such Lender’s Pro Rata Share (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,
(iv) after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Funding Notice delivered to the Administrative Agent in accordance with Section 2.1 (and the Borrower shall deliver such Funding Notice),
(v) each Lender shall be deemed to hold its Pro Rata Share of each Resulting Revolving Borrowing (calculated after giving effect to such effectiveness), and
(vi) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.18(c) if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. In addition, on such effective date, each of the Lenders holding a Revolving Commitment prior to such date (the “Pre-Increase Revolving Lenders”) shall automatically and without any further act action by any party be deemed to have assigned to each New Lenderthe Incremental Revolving Lenders on such date (the “Post-Increase Revolving Lenders”), and each such New Lender the Post-Increase Revolving Lenders will automatically and without any further act action by any party be deemed to have assumedassumed and purchased from the Pre-Increase Revolving Lenders, a portion of such Lender’s participations hereunder participation interest in outstanding Letters the Letter of Credit Obligations, Swing Line Loans and Protective Advances outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to such Commitment increase and each all such deemed assignment assignments and assumption of participationsassumptions, the percentage of the aggregate outstanding participations hereunder in Letters Letter of Credit Obligations shall be held by each Pre-Increase Revolving Lender (including and each such New Lender) will equal such Lender’s Applicable Percentage Post-Increase Revolving Lender ratably in accordance with its Ratable Share after giving effect to the new Incremental Revolving Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Abl Credit and Guaranty Agreement (QualTek Services Inc.)
Incremental Revolving Commitments. (a) The Company Borrowers shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.23, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.23) or the Lenders, to request at any time and from time to time after the Effective Date and prior to the Maturity Date that one or more Lenders (including New Lenders but without and/or one or more other Persons which are Eligible Assignees and which will become Lenders) provide Incremental Revolving Commitments and, subject to the consent applicable terms and conditions contained in this Agreement and the relevant Incremental Revolving Commitment Agreement, make Revolving Loans and participate in Letters of any other LenderCredit and Swingline Loans pursuant thereto; provided that (i) may from time no Lender shall be obligated to time agree that provide an Incremental Revolving Commitment, and until such Lenders shall obtain or increase the amount of their Commitments by executing time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Commitment and delivering executed and delivered to the Administrative Agent and the Borrowers an Increased Facility Activation Notice specifying Incremental Revolving Commitment Agreement as provided in clause (ib) the amount of this Section 2.23, such increase and Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Commitment (if any) or participate in any Letters of Credit or Swingline Loans in excess of its Revolving Commitment Percentage, in each case, as in effect prior to giving effect to such Incremental Revolving Commitment provided pursuant to this Section 2.23, (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, any Lender (iincluding any Person which is an Eligible Assignee who will become a Lender) may so provide an Incremental Revolving Commitment without the consent of the Required Lenders, Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the aggregate amount effectiveness of incremental Commitments obtained after the Effective Date pursuant to this paragraph its Incremental Revolving Commitment shall not exceed $100,000,000 and (ii) without require the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Issuing Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent Swingline Lender (which consent consents shall not be unreasonably withheld)) to provide an Incremental Revolving Commitment pursuant to this Section 2.23, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (yiii) the aggregate amount of each request (and provision therefor) for Incremental Revolving Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Revolving Commitment pursuant to a given Incremental Revolving Commitment Agreement pursuant to this Section 2.23 (including Persons who are Eligible Assignees and will become Lenders) of at least $10,000,000 (or such Type or Eurocurrency Borrowing requested lesser amount that is acceptable to the Administrative Agent), (iv) the aggregate amount of all Incremental Revolving Commitments permitted to be so borrowed or effected had been proportionately increasedprovided pursuant to this Section 2.23 shall not exceed in the aggregate $55,000,000, (v) the Applicable Percentages with respect to Loans, Commitment Fees and Letter of Credit Fees in connection with a Incremental Revolving Commitment shall be the same as those applicable to any other Loans, Commitment Fees and Letter of Credit Fees, as the case may be, hereunder immediately prior to the Incremental Revolving Commitment Date with respect to such Incremental Revolving Commitment, (vi) the up-front fees payable to each Incremental Lender shall be separately agreed to by the Borrowers, the Administrative Agent and such Incremental Lender, (vii) all Revolving Loans incurred pursuant to an Incremental Revolving Commitment (and all interest, fees and other amounts payable thereon) shall be Credit Party Obligations under this Agreement and the other Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on a pari passu basis will all other Loans secured by each Security Document and guaranteed under the Guaranties, and (iiviii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including any Person which is an Eligible Assignee who will become a Lender) agreeing to provide an Incremental Revolving Commitment pursuant to an Incremental Revolving Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.2(b)(ii) and 2.3(c), respectively, and make Revolving Loans as provided in Section 2.1(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Revolving Commitments pursuant to this Section 2.23, each Borrower, each Guarantor, the Administrative Agent and each such New Lender or other Eligible Assignee which agrees to provide an Incremental Revolving Commitment (each, an “Incremental Lender”) will equal such Lender’s Applicable Percentage after giving effect shall execute and deliver to the new CommitmentsBorrowers and the Administrative Agent an Incremental Revolving Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Revolving Commitment provided therein to occur on the date set forth in such Incremental Revolving Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Revolving Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.23 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Revolving Commitment Agreement shall have been satisfied). The Eurocurrency Rate applicable Administrative Agent shall promptly notify each Lender as to any Eurocurrency Loan borrowed the effectiveness of each Incremental Revolving Commitment Agreement and, at such time, Schedule 1.1(d) shall be deemed modified to reflect the Incremental Revolving Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Revolving Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Revolving Commitment Agreement shall constitute part of, and be added to, the preceding sentence Revolving Commitment and each Incremental Lender shall equal the Eurocurrency Rate then constitute a Lender for all purposes of this Agreement and each other applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)Credit Document.
(d) Notwithstanding anything At the time of any provision of Incremental Revolving Commitments pursuant to this Section 2.23, the contrary Borrowers shall, in this Agreementcoordination with the Administrative Agent, each repay outstanding Revolving Loans of certain of the parties hereto hereby agrees thatLenders, on and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each Increased Facility Closing Date, this Agreement shall be amended case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (but only after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.23) and with the Applicable Borrower being obligated to pay to the extent) necessary to reflect the existence respective Lenders any costs of the incremental Commitments evidenced thereby. Any type referred to in Section 2.16 in connection with any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties heretorepayment and/or borrowing.
Appears in 1 contract
Samples: Credit Agreement (Alliance One International, Inc.)
Incremental Revolving Commitments. (a) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Eurodollar Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.. ARTICLE III
Appears in 1 contract
Samples: Credit Agreement (Brunswick Corp)
Incremental Revolving Commitments. (a) The Company Borrower and any one or more Lenders (including New Lenders but without Lenders), with the consent of any other Lender) the Administrative Agent, may from time to time agree that such Lenders shall make, obtain or increase the amount of their Commitments Maximum Credit Amounts by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments amounts obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 150,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company Borrower after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a2.09(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers any Loans thereafter shall borrow Revolving Loans be made under the relevant increased Commitments Maximum Credit Amounts from each Lender participating in the relevant increase in an amount and shall be determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Eurodollar Loans, of each Eurocurrency Eurodollar Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Eurodollar Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Eurodollar Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate rate applicable to any Eurocurrency Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate rate then applicable to the Eurocurrency Eurodollar Loans of the other Lenders in the same Eurocurrency Eurodollar Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company and any So long as the Incremental Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower shall have the right to request that one or more Lenders (including New and/or one or more other Persons which will become Lenders but as provided below) provide Incremental Revolving Commitments and, subject to the applicable terms and conditions contained in this Agreement, make RF Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Commitment and executed and delivered to the Administrative Agent an Incremental Revolving Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund any RF Loans in excess of its Revolving Commitment as in effect prior to giving effect to such Incremental Revolving Commitment provided pursuant to this Section 1.14, (ii) any Lender (or, in the circumstances contemplated by clause (v) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Commitment without the consent of any other Lender, (iii) may from time each provision of Incremental Revolving Commitments on a given date pursuant to time agree that such this Section 1.14 shall be in a minimum aggregate amount (for all Lenders shall obtain or increase (including, in the circumstances contemplated by clause (v) below, Eligible Transferees who will become Lenders)) of at least $2,500,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of their all Incremental Revolving Commitments by executing and delivering permitted to be provided pursuant to this Section 1.14 shall not exceed $10,000,000, (v) the Borrower may request Incremental Revolving Commitments from Persons reasonably acceptable to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of which would qualify as Eligible Transferees hereunder, PROVIDED that any such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Incremental Revolving Commitments obtained after the Effective Date pursuant to this paragraph shall provided by any such Eligible Transferee which is not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $25,000,000 2,500,000 (and with the fees to be paid to such Eligible Transferee to be no greater than those fees to be paid to the then existing Lenders (yif any) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific dateproviding Incremental Revolving Commitments) and (iiivi) at all actions taken by the time of and immediately after giving effect Borrower pursuant to such increase, no Default or Event of Default this Section 1.14 shall have occurred and be continuing. No Lender shall have any obligation to participate done in any increase described in this paragraph unless it agrees to do so in its sole discretioncoordination with the Administrative Agent.
(b) Any additional bank, financial institution or other entity which, In connection with the consent of Incremental Revolving Commitments to be provi(led pursuant to this Section 1.14, the Company and Borrower, the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New and each such Lender Supplement or other Eligible Transferee (each, a “New Lender Supplement”), an "INCREMENTAL RF LENDER") which agrees to provide an Incremental Revolving Commitment shall execute and deliver to the Administrative Agent an Incremental Revolving Commitment Agreement substantially in the form of Exhibit JK (appropriately completed), whereupon with the effectiveness of such bankIncremental RF Lender's Incremental Revolving Commitment to occur upon delivery of such Incremental Revolving Commitment Agreement to the Administrative Agent, financial institution the payment of any fees required in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent) and the satisfaction of the Incremental Commitment Requirements and any other entity conditions precedent that may be set forth in such Incremental Revolving Commitment Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Commitment Agreement, and at such time, (a “New Lender”i) shall become a Lender the Total Revolving Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Commitments, (ii) Annex I shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iii) to the same extent as if originally a party hereto and shall requested by any Incremental RF Lender, RF Notes will be bound by and entitled issued at the Borrower's expense, to such Incremental RF Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the benefits of this Agreementextent needed to reflect the new RF Loans made by such Incremental RF Lender.
(c) Unless otherwise agreed by At the time of any provision of Incremental Revolving Commitments pursuant to this Section 1.14, the Borrower shall, in coordination with the Administrative Agent, on repay outstanding RF Loans of certain of the RF Lenders, and incur additional RF Loans from certain other RF Lenders (including the Incremental RF Lenders), in each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference case to the amount extent necessary so that all of the RF Lenders participate in each Type outstanding Borrowing of Loan RF Loans PRO RATA on the basis of their respective Revolving Commitments (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such any increase in the Total Revolving Commitment increase pursuant to this Section 1.14) and each such deemed assignment and assumption of participations, with the percentage Borrower being obligated to pay to the respective RF Lenders any costs of the aggregate outstanding participations hereunder type referred to in Letters of Credit held by each Lender (including each Section 1.11 in connection with any such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)repayment and/or Borrowing.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a1) The Company and any one or more Lenders (including New Lenders but without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments Borrower may, by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class (a “Revolving Commitment Increase”) or the establishment of a new Class of Revolving Commitments or Extended Revolving Commitments (such new Class of Commitments, an Increased Facility Activation Notice specifying “Additional Revolving Commitment” and, together with any Revolving Commitment Increases, the “Incremental Revolving Commitments”), as applicable, in an aggregate amount for any such incurrence (excluding Refinancing Term Loans and any Additional Revolving Commitments that are established concurrently with the reduction in any then existing Class of Revolving Commitments) not to exceed the sum of (i) the then remaining Incremental Amount and (ii) an unlimited amount, so long as, to the extent (A) such Commitments are secured, the pro forma Consolidated Secured Net Leverage Ratio does not exceed 3.50 to 1.00 or (B) such Commitments are unsecured, the pro forma Consolidated Net Leverage Ratio does not exceed 4.50 to 1.00Borrower shall be in compliance on a Pro Forma Basis with Section 8.11 immediately after giving effect to such incurrence (in each case, excluding cash proceeds of such Incremental Commitments from cash and cash equivalents and treating any Incremental Revolving Commitments as fully drawn), from one or more Eligible Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan or additional Revolving Commitment without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan or Revolving Commitment, as applicable, to such Person) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion. Such notice shall set forth (i) the amount of such increase and the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph which shall be in a minimum amount of at least $25,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) (x) in the case of Incremental Term Loan Commitments, whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (y) no more than 4 Increased Facility Closing Dates may in the case of any Incremental Revolving Commitments, whether such Revolving Commitments are to be selected an increase in any existing Class of Revolving Commitments or a new Class of Revolving Commitments and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (which shall, unless otherwise agreed by the Company Administrative Agent, be not less than ten Business Days after the Effective Date. In connection with any increase described in this paragraphdate such notice is delivered).
(2) The Loan Parties, (i) the Company shall provide the Administrative Agent with certificates and legal opinions any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent may shall reasonably request, specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Revolving Commitment Increases shall have the same terms as the then existing Revolving Commitments (except for upfront and arrangement fees);
(ii) the representations and warranties Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Loan Parties set forth in this Agreement Borrower that do not guarantee the existing Loans and in the other Loan Documents shall be true secured on a pari passu basis by the same Collateral (and correct on and as of no additional collateral) securing the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and then existing Obligations;
(iii) at (a) the time Maturity Date of any Incremental Term Loans or Additional Revolving Commitments shall be no earlier than the then Latest Maturity Date, (b) no Incremental Term Loans shall require scheduled amortization payments in excess of 15.0% per annum of the original principal amount thereof and immediately (c) there shall be no scheduled amortization of any Additional Revolving Commitment prior to the Latest Maturity Date of any Revolving Commitment;
(iv) [reserved];
(v) [reserved];
(vi) subject to the above, any Incremental Term Loans and Additional Revolving Commitments shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans or Additional Revolving Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after giving effect the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such increasemore restrictive provisions for the benefit of the then existing Lenders); and
(vii) subject to Section 1.10, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.01(d) unless (w) no Default or Event of Default shall have occurred exist giving pro forma effect to such Incremental Term Loan Commitment or Incremental Revolving Commitment and be continuing. No Lender shall have any obligation to participate the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in any increase described in this paragraph unless it agrees to do so in its sole discretion.
clauses (a) and (b) Any additional bankof Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and only to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
Borrowing is made on such date clause (c) Unless otherwise agreed by is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans or Incremental Revolving Commitments and the Administrative Agent, on each Increased Facility Closing Date incurrence of Indebtedness thereunder (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (andassuming, in the case of Eurocurrency Incremental Term Loan Commitments, that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Revolving Commitments or Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each Class are held by the Lenders of such Type or Eurocurrency Borrowing had been borrowed or effected Class on such Increased Facility Closing Date and (y) a pro rata basis in accordance with the aggregate respective amount of each such Type Revolving Commitments or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion Term Loans of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit Class held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments under either Facility (“Incremental Revolving Commitments”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.06 recomputed as of the last day of the most recent fiscal quarter for which financial statements have been or were required to be delivered pursuant to paragraph (a) or (b) of Section 5.01, and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $625,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section 2.18 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower and the Administrative Agent and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section 2.18 (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (2) each increase effected pursuant of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestAdditional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date Date). The Administrative Agent shall receive not less than 10 Business Days’ advance notice (oror shorter, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased proposed Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Nasdaq, Inc.)
Incremental Revolving Commitments. (a) The Company At any time and from time to time prior to the Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the existing Revolving Commitments (“Incremental Revolving Commitments”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.09 recomputed as of the last day of the most recent fiscal quarter for which financial statements have been or were required to be delivered pursuant to paragraph (a) or (b) of Section 5.01, and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Revolving Commitments shall not exceed $500,000,000. Each exercise of the Borrower’s right to seek Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments (any one such bank, financial institution, existing Lender or more Lenders other Person being called an “Additional Lender”) shall be reasonably satisfactory to the Borrower and the Administrative Agent and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (including New Lenders but an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Revolving Commitment unless, in its sole discretion, it so agrees. An Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the aggregate amount of incremental Commitments obtained after the Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent opinion of the Administrative Agent, to effect the provisions of this Section (xincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) each increase effected pursuant of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestAdditional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) the representations and warranties of each of the Loan Parties conditions set forth in this Agreement and Section 4.02 (it being understood that all references to “the date of such Borrowing” in the other Loan Documents Section 4.02 shall be true and correct on and as of deemed to refer to the Increased Incremental Facility Closing Date Date). The Administrative Agent shall receive not less than 10 Business Days’ advance notice (oror shorter, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such New Lender) will equal such Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased proposed Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Incremental Revolving Commitments. (a) The Company At any time and any from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more Lenders increases in the aggregate amount of the Revolving Commitments (including New Lenders but each such increase, a “Revolving Commitment Increase”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or shall result therefrom, (B) after giving effect to such Revolving Commitment Increase and the application of the proceeds therefrom and assuming that the full amount of such Revolving Commitment Increase shall have been funded on such date, the Borrower shall be in compliance, on a Pro Forma Basis, with the covenants contained in Sections 6.12, 6.13 and 6.15 and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period). Notwithstanding anything to contrary herein, the aggregate principal amount of all Revolving Commitment Increases incurred pursuant to this Section 2.22 shall not exceed $100,000,000. Each Revolving Commitment Increase shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the Revolving Commitment Increases permitted above.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Any additional bank, financial institution, existing Lender or other Person that elects to extend Revolving Commitment Increases shall be reasonably satisfactory to the Borrower, the Administrative Agent, each Issuing Bank and each Swingline Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Revolving Commitment Increase, unless it so agrees. Commitments in respect of any Revolving Commitment Increase shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Xxxxxx’s Revolving Commitment) under this Agreement upon the effectiveness of the applicable Incremental Facility Amendment. Notwithstanding anything in this Agreement to the contrary, an Incremental Facility Amendment may, without the consent of any other Lender) may from time to time agree that such Lenders shall obtain or increase the amount of their Commitments by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Effective Date pursuant effect such amendments to this paragraph shall not exceed $100,000,000 and (ii) without Agreement or any other Loan Document as may be necessary or appropriate, in the consent opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the effective date thereof of each of the conditions set forth in Section 4.02 (x) each increase effected pursuant it being understood and agreed that all references to this paragraph a Borrowing in Section 4.02 shall be in a minimum amount deemed to refer to the applicable Incremental Facility Amendment).
(c) On the date of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with effectiveness of any increase described in this paragraphRevolving Commitment Increase, (i) the Company aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably requestbe deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the representations and warranties effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Loan Parties set forth in this Agreement and in Resulting Revolving Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect to the other Loan Documents shall be true and correct on and as effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Increased Facility Closing Date Existing Revolving Borrowings, (or, if any such representation or warranty is expressly stated iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment prior to have been made as of a specific earlier date, as the effectiveness of such specific dateRevolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) at above, the time Administrative Agent shall pay to each applicable Lender the portion of and immediately such funds that is equal to the amount, if any, by which (A) (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings, exceeds (B) (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such increase, no Default or Event of Default shall have occurred and be continuing. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
Revolving Commitment Increase) multiplied by (b2) Any additional bank, financial institution or other entity which, with the consent aggregate principal amount of the Company Resulting Revolving Borrowings, (v) after the effectiveness of such Revolving Commitment Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (which consent and the Borrower shall not be unreasonably withhelddeliver such Borrowing Request), elects (vi) each Revolving Lender shall be deemed to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement hold its Applicable Percentage of each Resulting Revolving Borrowing (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and calculated after giving effect to the same extent as if originally a party hereto effectiveness of such Revolving Commitment Increase) and (vii) the Borrower shall be bound by pay each Revolving Lender any and entitled all accrued but unpaid interest on its Loans that comprised the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date clause (i) above shall be subject to compensation by the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference Borrower pursuant to the amount provisions of Section 2.15 if the date of the effectiveness of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Type of Loan (andRevolving Commitment Increase pursuant to this Section, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurocurrency Borrowing requested to be so borrowed or effected had been proportionately increased, and (ii) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Revolving Commitment Increase Lender, and each such New Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment increase Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and participations hereunder in Swingline Loans, in each case held by each Revolving Lender (including each such New Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage after giving effect to the new Commitments. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)Percentage.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Incremental Revolving Commitments. (a) The Company Borrowers shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.23, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.23) or the Lenders, to request at any time and from time to time on and after the Effective Date and prior to the Extended Maturity Date that one or more Lenders (including New Lenders but without and/or one or more other Persons which are Eligible Assignees and which will become Lenders) provide Incremental Revolving Commitments and, subject to the consent applicable terms and conditions contained in this Agreement and the relevant Incremental Revolving Commitment Agreement, make Revolving Loans and participate in Letters of any other LenderCredit and Swingline Loans pursuant thereto; provided that (i) may from time no Lender shall be obligated to time agree that provide an Incremental Revolving Commitment, and until such Lenders shall obtain or increase the amount of their Commitments by executing time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Commitment and delivering executed and delivered to the Administrative Agent and the Borrowers an Increased Facility Activation Notice specifying Incremental Revolving Commitment Agreement as provided in clause (ib) the amount of this Section 2.23, such increase and Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Commitment (if any) or participate in any Letters of Credit or Swingline Loans in excess of its Revolving Commitment Percentage, in each case, as in effect prior to giving effect to such Incremental Revolving Commitment provided pursuant to this Section 2.23, (ii) the applicable Increased Facility Closing Date. Notwithstanding the foregoing, any Lender (iincluding any Person which is an Eligible Assignee who will become a Lender) may so provide an Incremental Revolving Commitment without the consent of the Required Lenders, Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the aggregate amount effectiveness of incremental Commitments obtained after the Effective Date pursuant to this paragraph its Incremental Revolving Commitment shall not exceed $100,000,000 and (ii) without require the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than 4 Increased Facility Closing Dates may be selected by the Company after the Effective Date. In connection with any increase described in this paragraph, (i) the Company shall provide the Administrative Agent with certificates and legal opinions as the Administrative Agent may reasonably request, (ii) the representations and warranties of the Loan Parties set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the Increased Facility Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific date) and (iii) at the time of and immediately after giving effect to such increase, no Default or Event of Default shall have occurred and be continuing. No Issuing Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent Swingline Lender (which consent consents shall not be unreasonably withheld)) to provide an Incremental Revolving Commitment pursuant to this Section 2.23, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date (i) the Borrowers shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurocurrency Loans, of each Eurocurrency Borrowing) which would then have been outstanding from such Lender if (x) each such Type or Eurocurrency Borrowing had been borrowed or effected on such Increased Facility Closing Date and (yiii) the aggregate amount of each request (and provision therefor) for Incremental Revolving Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Revolving Commitment pursuant to a given Incremental Revolving Commitment Agreement pursuant to this Section 2.23 (including Persons who are Eligible Assignees and will become Lenders) of at least $10,000,000 (or such Type or Eurocurrency Borrowing requested lesser amount that is acceptable to the Administrative Agent), (iv) the aggregate amount of all Incremental Revolving Commitments permitted to be so borrowed or effected had been proportionately increasedprovided pursuant to this Section 2.23, in addition to the Additional Extended Revolving Commitments incurred on the Effective Date, shall not exceed in the aggregate $35,000,000 plus, from and after the Non-Extended Maturity Date, the aggregate amount of Non-Extended Revolving Commitments terminated pursuant to Section 2.5(d) hereof, (v) the Applicable Percentages with respect to Loans, Commitment Fees and Letter of Credit Fees in connection with an Incremental Revolving Commitment shall be the same as those applicable to any other Loans, Commitment Fees and Letter of Credit Fees, as the case may be, hereunder, in each case in connection with the Extended Revolving Commitment, immediately prior to the Incremental Revolving Commitment Date with respect to such Incremental Revolving Commitment, (vi) the up-front fees payable to each Incremental Lender shall be separately agreed to by the Borrowers, the Administrative Agent and such Incremental Lender, (vii) all Revolving Loans incurred pursuant to an Incremental Revolving Commitment (and all interest, fees and other amounts payable thereon) shall be Credit Party Obligations under this Agreement and the other Credit Documents and shall be secured by the Security Documents, and guaranteed under the Guaranties, on a pari passu basis will all other Loans secured by each Security Document and guaranteed under the Guaranties, and (iiviii) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such Commitment increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including any Person which is an Eligible Assignee who will become a Lender) agreeing to provide an Incremental Revolving Commitment pursuant to an Incremental Revolving Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.2(b)(ii) and 2.3(c), respectively, and make Revolving Loans as provided in Section 2.1(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Revolving Commitments pursuant to this Section 2.23, each Borrower, each Guarantor, the Administrative Agent and each such New Lender or other Eligible Assignee which agrees to provide an Incremental Revolving Commitment (each, an “Incremental Lender”) will equal such Lender’s Applicable Percentage after giving effect shall execute and deliver to the new CommitmentsBorrowers and the Administrative Agent an Incremental Revolving Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Revolving Commitment provided therein to occur on the date set forth in such Incremental Revolving Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Revolving Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.23 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Revolving Commitment Agreement shall have been satisfied). The Eurocurrency Rate applicable Administrative Agent shall promptly notify each Lender as to any Eurocurrency Loan borrowed the effectiveness of each Incremental Revolving Commitment Agreement and, at such time, the Extended Revolving Commitments shall be deemed modified to reflect the Incremental Revolving Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Revolving Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Revolving Commitment Agreement shall constitute part of, and be added to, the preceding sentence Extended Revolving Commitment and each Incremental Lender shall equal the Eurocurrency Rate then constitute a Lender for all purposes of this Agreement and each other applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the applicable Borrower and the relevant Lender)Credit Document.
(d) Notwithstanding anything At the time of any provision of Incremental Revolving Commitments pursuant to this Section 2.23, the contrary Borrowers shall, in this Agreementcoordination with the Administrative Agent, each repay outstanding Revolving Loans of certain of the parties hereto hereby agrees thatLenders, on and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each Increased Facility Closing Date, this Agreement shall be amended case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (but only after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.23) and with the Applicable Borrower being obligated to pay to the extent) necessary to reflect the existence respective Lenders any costs of the incremental Commitments evidenced thereby. Any type referred to in Section 2.16 in connection with any such deemed amendment may be effected in writing by the Company. the Administrative Agent and the Lenders participating in the relevant increase and furnished to the other parties heretorepayment and/or borrowing.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Alliance One International, Inc.)
