Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent. (b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated hereby. (c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 2 contracts
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc), Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ ' prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 1.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 1.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.14 shall not cause the Total Commitment to exceed $750,000,000225,000,000 (after giving effect to all such Incremental Revolving Loan Commitments), and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 1.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without from the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentthen existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.14, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “"Incremental RL Lender”") which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed)Agreement, with the effectiveness of such Incremental RL Lender’s 's Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by shall have been satisfied as of the Corporation that may be set forth in the respective relevant Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably requestDate. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at upon the effectiveness of such time Incremental Revolving Loan Commitment Agreement (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan or new Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected existing Lenders and each new Person added as a Lender (vprovided such new Person qualifies as an Eligible Transferee), which Commitment shall equal (x) in the case of a Person providing an Incremental Revolving Loan Commitment who was not a Lender prior to effectiveness of the Incremental Revolving Loan Commitment Agreement, an amount equal to the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement and (y) in the case of a Person providing an Incremental Revolving Loan Commitment who is an existing Lender, an amount equal to the sum of the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement plus such Lender's Commitment immediately prior to giving effect to such Incremental Revolving Loan Commitment Agreement and (iii) to the extent requested by any Incremental RL Lender, any relevant Revolving Notes will be issued issued, at the Corporation’s Borrower's expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of new Commitment made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.14, the Lenders and the Borrowers Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under of certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL of the Lenders, and incur additional Domestic Dollar or new Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Revolving Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Eurodollar Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Revolving Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.14), (ii) the Corporation Borrower shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) ), and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Revolving Loans which are maintained as Euro Rate Eurodollar Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c1.14(c), the Administrative Agent shall act with an eye towards minimizing endeavor to minimize (but shall have no express obligation to minimize) costs to the BorrowersBorrower (including, without limitation, by agreeing in its sole discretion to delay any relevant Incremental Revolving Loan Commitment Date to an end of an Interest Period). All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 2.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.192.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 2.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 2.14 shall not cause the Total Commitment to exceed $750,000,000, 700,000,000 and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 2.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated hereby.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL existing Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 1.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 1.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.14 shall not cause the Total Commitment to exceed $750,000,000, 700,000,000 (after giving effect to all such Incremental Revolving Loan Commitments in an amount not to exceed $200,000,000 in the aggregate) and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 1.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without from the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentthen existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.14, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed)Agreement, with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by shall have been satisfied as of the Corporation that may be set forth in the respective relevant Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably requestDate. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at upon the effectiveness of such time Incremental Revolving Loan Commitment Agreement (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan or new Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected existing Lenders and each new Person added as a Lender (vprovided such new Person qualifies as an Eligible Transferee), which Commitment shall equal (x) in the case of a Person providing an Incremental Revolving Loan Commitment who was not a Lender prior to effectiveness of the Incremental Revolving Loan Commitment Agreement, an amount equal to the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement and (y) in the case of a Person providing an Incremental Revolving Loan Commitment who is an existing Lender, an amount equal to the sum of the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement plus such Lender’s Commitment immediately prior to giving effect to such Incremental Revolving Loan Commitment Agreement and (iii) to the extent requested by any Incremental RL Lender, any relevant Revolving Notes will be issued issued, at the CorporationBorrower’s expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of new Commitment made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.14, the Lenders and the Borrowers Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under of certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL of the Lenders, and incur additional Domestic Dollar or new Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Revolving Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Eurodollar Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Revolving Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.14), (ii) the Corporation Borrower shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) ), and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Revolving Loans which are maintained as Euro Rate Eurodollar Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c1.14(c), the Administrative Agent shall act with an eye towards minimizing endeavor to minimize (but shall have no express obligation to minimize) costs to the BorrowersBorrower (including, without limitation, by agreeing in its sole discretion to delay any relevant Incremental Revolving Loan Commitment Date to an end of an Interest Period). All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at At any time and from time to time prior to the Latest Maturity Date, subject to the terms and upon at least 5 conditions set forth herein, the Borrower Agent may by no less than three (3) Business Days’ prior written notice to the Administrative Agent (or such lesser number of days as may be reasonably acceptable to the Administrative Agent), to request on one or more occasions increases of the amount of the Commitments under the then existing Revolving Facility (including increases of the amount of the LC Commitments and/or the LC Sublimit, if agreed to by each Issuing Bank in its sole discretion) (each such increase, an “Incremental Revolving Facility”) denominated in Dollars (the revolving loans extended thereunder, the “Incremental Revolving Loans”), or a combination thereof; provided that:
(i) immediately before and after giving effect to each Incremental Amendment and the applicable Incremental Revolving Facility, no Event of Default has occurred and is continuing or would result therefrom and the representations and warranties in Section 5 shall be true and correct in all material respects (except that one (x) any representation and warranty that is qualified as to “materiality” or more “Material Adverse Effect” shall be true and correct in all respects and (y) any representation and warranty which expressly relates to an earlier date shall be true and correct in all material respects as of such earlier date); provided that (A) to the extent the proceeds of any Incremental Revolving Facility are intended to be applied to finance a Permitted Acquisition or other Investment permitted under Section 8.7 that constitutes the acquisition by New Holdings and/or its Subsidiaries of the outstanding Capital Stock of any Person, or of all or substantially all of the assets of any Person or of a division or line of business of any Persons, if agreed to by the Additional Incremental Lenders providing such Incremental Revolving Facility, (and/or one x) the only representations and warranties that will be required to be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or more Material Adverse Effect, in all respects) as of the applicable closing date for such Incremental Revolving Facility shall be customary “specified representations” (as determined by the Borrower Agent and Additional Incremental Lenders) and such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition or other Persons which will become agreement as are material to the interests of the Lenders, but only to the extent that New Holdings or the applicable Subsidiary has the right to terminate its obligations under such acquisition or other agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement) and (y) the only condition with respect to absence of a Default or Event of Default shall be the absence of an Event of Default at the time such acquisition or similar agreement is entered into;
(ii) the aggregate amount of Incremental Revolving Facilities outstanding on any date shall not exceed $50,000,000;
(iii) in the event that the Yield for any Incremental Revolving Facility incurred is higher than the Yield for the Initial Revolving Loans, then the Applicable Margin for the Initial Revolving Loans shall be increased to the extent necessary so that the Yield for the Initial Revolving Loans is equal to the Yield for such Incremental Revolving Facility; and
(iv) each Incremental Revolving Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000, provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Facilities set forth above. Any Lenders participating in an Incremental Revolving Facility, unless then a Lender, shall be reasonably acceptable to the Swing Line Lender and each Issuing Bank.
(b) Each Incremental Revolving Facility:
(i) shall be Obligations under this Agreement and the other applicable Loan Documents and shall rank pari passu in right of payment and in respect of the Collateral and with the Obligations in respect of the Commitments made available to the Borrowers, and shall not benefit from any guarantees other than from the Guarantors under the Revolving Facility or be secured by any asset other than the Collateral; provided that, notwithstanding the foregoing or anything else in this Agreement or any other Loan Document to the contrary, all amounts owing to the Swing Line Lender and each Issuing Bank with respect to any Swing Line Loans or Letters of Credit participated in by Lenders holding Commitments as provided below) provide Incremental described above shall rank pari passu with all such amounts owing to the Swing Line Lender or Issuing Bank with respect to the Initial Revolving Loan Commitments and any other Commitments secured equally and ratably therewith;
(ii) for purposes of prepayments, Incremental Revolving Facilities (A) shall be treated in the same manner as the Initial Revolving Loans and related (B) shall be subject to customary “waterfall” provisions;
(iii) all other terms of such Incremental Alternate Currency Revolving Loan Sub-Facilities shall be on the same terms applicable to the existing Revolving Facility (including the maturity date in respect thereof) and pursuant to the same documentation applicable to the existing Revolving Facility (other than the relevant Incremental Amendment); provided that, notwithstanding the foregoing, if the Borrower Agent determines to increase the interest rate or fees payable in respect of Incremental Revolving Facilities or Incremental Revolving 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 Commitments with 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 Facilities or Incremental Revolving Loans and other extensions of credit made thereunder, as the case may be.
(c) Each notice from the Borrower Agent pursuant to one this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Facility. Any additional bank, financial institution, existing Lender or more Alternate Currency other Person that elects to provide Commitments under an Incremental Revolving Loan Sub-TranchesFacility shall be reasonably satisfactory to the Borrower Agent, the Administrative Agent, each Issuing Bank and the Swing Line Lender, such consent of each Issuing Bank and Swing Line Lender to be required, in each case, to the extent required under Section 11.6(c) (in each case, such consent not to be unreasonably withheld, conditioned or delayed) (any such bank, financial institution, existing Lender or other Person being called an “Additional Incremental Lender”) and, subject if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the applicable terms other Loan Documents, the Borrowers, such Additional Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no the Administrative Agent. No Lender shall be obligated to provide any Commitments under an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationFacility, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment unless it so agrees (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered Lender that does not respond shall be conclusively presumed not to the Administrative Agent an agree to provide additional Commitments). Commitments in respect of any Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of Facilities shall become Commitments under this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfiedAgreement. An Incremental Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Lenders, effect such amendments to any Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall Documents as may be in a minimum aggregate amount (for all Lenders (includingnecessary or appropriate, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent reasonable opinion of the Administrative Agent, and (ix) all actions taken by to effect the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to provisions of this Section 1.19 shall be done in coordination with (including to provide for voting provisions applicable to the Administrative Agent.
(b) In connection with Additional Incremental Lenders comparable to the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this provisions of Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case 11.1). The proceeds of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide Loans under an Incremental Revolving Loan Commitment (and Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith other purposes not prohibited hereunder (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative AgentRestricted Payments and acquisitions).
(d) and the satisfaction of the other conditions Each Lender in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount respect of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement Facility shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyan Eligible Assignee.
(ce) In connection with This Section 2.5 shall supersede any provision of Incremental Revolving Loan Commitments pursuant to this provisions in Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything 4.16 or 11.1 to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.contrary
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Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Silgan shall have the right right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Agents (except as otherwise provided in this Section 1.15) or the Lenders, to request at any time and from time to time after the Initial Borrowing Date and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions Incremental Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowRevolving Lenders) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; it being understood and agreed, however, provided that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent Agent, Silgan and the Revolving Borrowers an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (if any) or participate in any Alternate Currency Revolving Letters of Credit or Swingline Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche)RL Percentage, in each case case, as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.15, (iiiii) any Lender (or, in the circumstances contemplated by clause (vii) below, including any other Person which will qualify as is an Eligible TransfereeTransferee who will become a Revolving Lender) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any Agent or any other Lender; provided that any Person that is not a Revolving Lender (other than prior to the Administrative Agent in the circumstances contemplated by the definition effectiveness of its Incremental Revolving Loan Commitment Requirements)shall require the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) to provide an Incremental Revolving Loan Commitment pursuant to this Section 1.15, (iviii) the aggregate amount of each request (and provision of therefor) for Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders which provide an Incremental Revolving Loan Commitment pursuant to a given Incremental Revolving Loan Commitment Agreement pursuant to this Section 1.15 (including, in the circumstances contemplated by clause (vii) below, including Persons who are Eligible Transferees who and will become Revolving Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof50,000,000 (or such lesser amount as is acceptable to the Administrative Agent), (viv) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.15 shall not exceed $750,000,000exceed, (vi) when combined with the aggregate amount of all Incremental Alternate Currency Revolving Term Loan Sub-Commitments permitted to be provided pursuant to this Section 1.191.14, when combined with the sum of (I) $750,000,000 plus (II) the aggregate amount of any and all increases reductions to the Total Revolving Loan Commitment made pursuant to Section 13.12(e)(I3.02 (for this purpose, using the Dollar Equivalent of any Incremental Term Loan Commitments provided in an Alternate Currency), (v) all Loans incurred pursuant to Alternate Currency an Incremental Revolving Loan Sub-Commitments relating Commitment (and all interest, fees and other amounts payable thereon) (including, without limitation, such Revolving Loans incurred by a Foreign Revolving Borrower) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the US Collateral, and guaranteed under the US Borrowers/Subsidiaries Guaranty, on a pari passu basis with all other Revolving Loans, (vi) all Revolving Loans incurred pursuant to each Alternate Currency an Incremental Revolving Loan Sub-Tranche in excess Commitment (and all interest, fees and other amounts payable thereon) incurred by a Foreign Revolving Borrower also shall be secured and guaranteed to the extent required by Section 5.03(b) and (vii) each Lender (including any Person which is an Eligible Transferee who will become a Revolving Lender) agreeing to provide an Incremental Revolving Loan Commitment pursuant to an Incremental Revolving Loan Commitment Agreement shall, subject to the satisfaction of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as conditions set forth in the notice provided by the Corporation this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 1.01(h) and 2.04, respectively, and make Revolving Loans as provided below), then in Section 1.01(e) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentother applicable Credit Documents.
(b) In connection with At the time of the provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.15, (i) the CorporationSilgan, any relevant Alternate Currency each Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related each, an “Incremental Alternate Currency Revolving Loan Sub-CommitmentsLender”) shall execute and deliver to Silgan, each Revolving Borrower and the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J Agreement, appropriately completed (appropriately completed), with the effectiveness of such Incremental RL Lender’s the Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided therein to occur upon delivery of on the date set forth in such Incremental Revolving Loan Commitment Agreement to Agreement, which date in any event shall be no earlier than the Administrative Agent, the payment of any date on which (i) all fees required to be paid in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to at the Administrative Agent) and the satisfaction time of the other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agentsuch effectiveness shall have been paid, (ii) the all Incremental Revolving Loan Commitment Effectiveness Requirements have been satisfied, (iii) all conditions set forth in this Section 1.15 shall have been satisfied and any (iv) all other conditions precedent agreed to by the Corporation that may be set forth in the respective such Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment AgreementAgreement and, and at such time (i) the Total Revolving Loan Commitment undertime, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Incremental Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyRevolving Lenders.
(c) In connection with It is understood and agreed that the Incremental Revolving Loan Commitments provided by an Incremental Revolving Lender or Incremental Revolving Lenders, as the case may be, pursuant to each Incremental Revolving Loan Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment and each Incremental Revolving Lender shall constitute a Revolving Lender for all purposes of this Agreement and each other applicable Credit Document.
(d) At the time of any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.15, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers each Revolving Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency of certain of the Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Revolving Lenders (including the Incremental RL Revolving Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Revolving Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages respective Revolving Loan Commitments (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.15) and (II) all Alternate Currency RL Lenders with a given Alternate Currency the Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating Borrowers being obligated to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Revolving Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any such repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan CommitmentsBorrowing.
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Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 2.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.192.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 2.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 2.14 shall not cause the Total Commitment to exceed $750,000,000, 700,000,000 and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 2.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without from the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentthen existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.192.14, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed)Agreement, with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by shall have been satisfied as of the Corporation that may be set forth in the respective relevant Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably requestDate. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at upon the effectiveness of such time Incremental Revolving Loan Commitment Agreement (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan or new Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected existing Lenders and each new Person added as a Lender (vprovided such new Person qualifies as an Eligible Transferee), which Commitment shall equal (x) to in the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) case of such Incremental RL Lender contemplated hereby.
(c) In connection with any provision of a Person providing an Incremental Revolving Loan Commitments pursuant Commitment who was not a Lender prior to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including effectiveness of the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of Agreement, an amount equal to the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase for such Person as described in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.such
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Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Silgan shall have the right right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Agents (except as otherwise provided in this Section 1.15) or the Lenders, to request at any time and from time to time after the Initial Borrowing Date and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions Incremental Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowRevolving Lenders) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; it being understood and agreed, however, provided that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent Agent, Silgan and the Revolving Borrowers an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (if any) or participate in any Alternate Currency Revolving Letters of Credit or Swingline Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche)RL Percentage, in each case case, as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.15, (iiiii) any Lender (or, in the circumstances contemplated by clause (vii) below, including any other Person which will qualify as is an Eligible TransfereeTransferee who will become a Revolving Lender) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any Agent or any other Lender; provided that any Person that is not a Revolving Lender (other than prior to the Administrative Agent in the circumstances contemplated by the definition effectiveness of its Incremental Revolving Loan Commitment Requirements)shall require the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) to provide an Incremental Revolving Loan Commitment pursuant to this Section 1.15, (iviii) the aggregate amount of each request (and provision of therefor) for Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders which provide an Incremental Revolving Loan Commitment pursuant to a given Incremental Revolving Loan Commitment Agreement pursuant to this Section 1.15 (including, in the circumstances contemplated by clause (vii) below, including Persons who are Eligible Transferees who and will become Revolving Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof50,000,000, (viv) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.15 shall not exceed $750,000,000exceed, (vi) when combined with the aggregate amount of all Incremental Alternate Currency Revolving Term Loan Sub-Commitments permitted to be provided pursuant to Section 1.14, $450,000,000 in the aggregate (for this Section 1.19purpose, when combined with using the Dollar Equivalent of any Incremental Term Loan Commitments provided in an Alternate Currency), (v) all Loans incurred pursuant to an Incremental Revolving Loan Commitment (and all increases interest, fees and other amounts payable thereon) (including, without limitation, such Revolving Loans incurred by a Foreign Revolving Borrower) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the US Collateral, and guaranteed under the US Borrowers/Subsidiaries Guaranty, on a pari passu basis with all other Revolving Loans, (vi) all Revolving Loans incurred pursuant to Section 13.12(e)(I) to Alternate Currency an Incremental Revolving Loan Sub-Commitments relating Commitment (and all interest, fees and other amounts payable thereon) incurred by a Foreign Revolving Borrower also shall be secured and guaranteed to the extent required by Section 5.03(b), and (vii) each Alternate Currency Lender (including any Person which is an Eligible Transferee who will become a Revolving Lender) agreeing to provide an Incremental Revolving Loan Sub-Tranche in excess Commitment pursuant to an Incremental Revolving Loan Commitment Agreement shall, subject to the satisfaction of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as conditions set forth in the notice provided by the Corporation this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 1.01(g) and 2.04, respectively, and make Revolving Loans as provided below), then in Section 1.01(e) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentother applicable Credit Documents.
(b) In connection with At the time of the provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.15, (i) the CorporationSilgan, any relevant Alternate Currency each Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related each, an “Incremental Alternate Currency Revolving Loan Sub-CommitmentsLender”) shall execute and deliver to Silgan, each Revolving Borrower and the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J Agreement, appropriately completed (appropriately completed), with the effectiveness of such Incremental RL Lender’s the Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided therein to occur upon delivery of on the date set forth in such Incremental Revolving Loan Commitment Agreement to Agreement, which date in any event shall be no earlier than the Administrative Agent, the payment of any date on which (i) all fees required to be paid in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to at the Administrative Agent) and the satisfaction time of the other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agentsuch effectiveness shall have been paid, (ii) the all Incremental Revolving Loan Commitment Effectiveness Requirements have been satisfied, (iii) all conditions set forth in this Section 1.15 shall have been satisfied and any (iv) all other conditions precedent agreed to by the Corporation that may be set forth in the respective such Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment AgreementAgreement and, and at such time (i) the Total Revolving Loan Commitment undertime, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Incremental Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyRevolving Lenders.
(c) In connection with It is understood and agreed that the Incremental Revolving Loan Commitments provided by an Incremental Revolving Lender or Incremental Revolving Lenders, as the case may be, pursuant to each Incremental Revolving Loan Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment and each Incremental Revolving Lender shall constitute a Revolving Lender for all purposes of this Agreement and each other applicable Credit Document.
(d) At the time of any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.15, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers each Revolving Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency of certain of the Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Revolving Lenders (including the Incremental RL Revolving Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Revolving Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages respective Revolving Loan Commitments (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.15) and (II) all Alternate Currency RL Lenders with a given Alternate Currency the Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating Borrowers being obligated to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Revolving Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any such repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan CommitmentsBorrowing.
Appears in 1 contract
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ ' prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 1.20 and (y) the other conditions set forth in Section 1.19(b1.20(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.20, (iii) any Lender (or, in the circumstances contemplated by clause (viivi) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 1.20 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (viivi) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,0001.20, (vi) when combined with the aggregate amount of all Incremental Alternate Currency Revolving Term Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000200,000,000, (viivi) if (A) after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.191.20, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below) or (B) the Corporation is obligated to request an Incremental Revolving Loan Commitment from one or more Eligible Transferees that is not already a Lender in order to comply with the requirements of subclause (y) of the proviso appearing in Section 1.19(a)(vi), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiencydeficiency (in circumstances contemplated by preceding clause (A)) or the amount required to comply with the requirements of subclause (y) of the proviso appearing in Section 1.19(a)(vi) (in the circumstances contemplated by preceding subclause (B)), as the case may be, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided PROVIDED that (x) any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,0005,000,000 and (y) any request of Incremental Revolving Loan Commitments from any such Person in the circumstances contemplated by subclause (A) of this clause (vi) above must be accompanied by a request for an -30- Incremental Term Loan Commitment from such Person in accordance with the requirements of Section 1.19(a), with the aggregate amount of the Incremental Loan Commitments to be provided by such Person pursuant to such requests to be allocated among the Incremental Term Loan Commitment and the Incremental Revolving Loan Commitment to be provided by such Person on a PRO RATA basis (based on the aggregate outstanding principal amount of all Term Loans at such time and the Total Revolving Loan Commitment as in effect at such time), (viiivii) in no Incremental event shall any Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided (or be increased) as a result of the provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19 without the consent of the Administrative Agent, 1.20 and (ixviii) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 1.20 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.20, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental "INCREMENTAL RL Lender”LENDER") which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J M (appropriately completed), with the effectiveness of such Incremental RL Lender’s 's Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b1.20(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties Corporation reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Borrowing Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (viii) to the extent requested by any Incremental RL Lender, any relevant Dollar Revolving Notes will be issued at the Corporation’s 's expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.06 (with appropriate modification) to the extent needed to reflect the increases to the new Incremental Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of Loans made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.20, the Lenders and the Borrowers Corporation hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain in a given Alternate Currency Revolving Loan Sub-Tranches owing to of certain of the RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain in a given Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to in a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata PRO RATA on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan SubNon-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.20) and (II) all Alternate Currency RL Lenders with a given an Alternate Currency Revolving Loan Sub-Commitment in a given Alternate Currency effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related in such Alternate Currency Revolving Loan Sub-Tranche pro rata PRO RATA on the basis of their Alternate Currency RL Percentages relating as the same relate to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan SubNon-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.20), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to in a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c1.20(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ ' prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 1.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 1.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.14 shall not cause the Total Commitment to exceed $750,000,000350,000,000 (after giving effect to all such Incremental Revolving Loan Commitments), and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 1.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without from the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentthen existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.14, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “"Incremental RL Lender”") which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed)Agreement, with the effectiveness of such Incremental RL Lender’s 's Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by shall have been satisfied as of the Corporation that may be set forth in the respective relevant Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably requestDate. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at upon the effectiveness of such time Incremental Revolving Loan Commitment Agreement (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan or new Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected existing Lenders and each new Person added as a Lender (vprovided such new Person qualifies as an Eligible Transferee), which Commitment shall equal (x) in the case of a Person providing an Incremental Revolving Loan Commitment who was not a Lender prior to effectiveness of the Incremental Revolving Loan Commitment Agreement, an amount equal to the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement and (y) in the case of a Person providing an Incremental Revolving Loan Commitment who is an existing Lender, an amount equal to the sum of the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement plus such Lender's Commitment immediately prior to giving effect to such Incremental Revolving Loan Commitment Agreement and (iii) to the extent requested by any Incremental RL Lender, any relevant Revolving Notes will be issued issued, at the Corporation’s Borrower's expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.05 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of new Commitment made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.14, the Lenders and the Borrowers Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under of certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL of the Lenders, and incur additional Domestic Dollar or new Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Revolving Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Eurodollar Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Revolving Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.14), (ii) the Corporation Borrower shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) ), and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Revolving Loans which are maintained as Euro Rate Eurodollar Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c1.14(c), the Administrative Agent shall act with an eye towards minimizing endeavor to minimize (but shall have no express obligation to minimize) costs to the BorrowersBorrower (including, without limitation, by agreeing in its sole discretion to delay any relevant Incremental Revolving Loan Commitment Date to an end of an Interest Period). All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000375,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Borrowing Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any the relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.06 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated hereby.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Non-Alternate CurrencyDomestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Non-Alternate CurrencyDomestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000375,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Borrowing Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any the relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.06 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated hereby.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Non-Alternate Currency Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Non-Alternate Currency Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time prior to May 22, 2005, but on no more than 3 occasions, and in each case upon at least 5 Business Days’ ' prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 2.19 and (y) the other conditions set forth in Section 1.19(b2.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.192.19, (iii) any Lender (or, in the circumstances contemplated by clause (viivi) below, any other Person which will qualify as an Eligible TransfereeAssignee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 2.19 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (viivi) below, Eligible Transferees Assignees who will become Lenders)) of at least $10,000,000 5,000,000.00 and in integral multiples of $1,000,000 1,000,000.00 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche2.19, shall not exceed $150,000,00035,000,000.00, (viivi) if after the Corporation Borrower has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.192.19, the Corporation Borrower has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation Borrower as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees Assignees hereunder in an aggregate amount equal up to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee Assignee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee Assignee which is not already a Lender shall be in a minimum amount (for such Eligible TransfereeAssignee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent5,000,000.00, and (ixvii) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) Borrower pursuant to this Section 1.19 2.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.192.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee Assignee (each, an “"Incremental RL Lender”") which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J F (appropriately completed), with the effectiveness of such Incremental RL Lender’s 's Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b2.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation Borrower that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to Borrower, Parent Guarantor and the Credit Parties Subsidiary Guarantors reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Funding Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I 1 shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (viii) to the extent requested by any Incremental RL Lender, any relevant Revolving Notes will be issued at the Corporation’s Borrower's expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 2.13 (with appropriate modification) to the extent needed to reflect the increases to the new Incremental Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of Loans made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision The aggregate principal balance of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect immediately prior to any increase in the Total Revolving Loan Commitment pursuant to the preceding subparagraph (b) shall be reallocated among the Lenders such that from and after any such increase in the Domestic Dollar Revolving Loan Sub-Commitments Commitment, the outstanding principal balance of Revolving Loans due and the Alternate Currency Revolving Loan Sub-Commitments payable to each Lender shall be equal to such Lender's Pro Rata Share of the Incremental RL Lenders) pursuant Aggregate Outstanding Credit Exposure with respect to this Section 1.19) and (II) all Alternate Currency RL Revolving Loans. Those Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total whose Revolving Loan Commitment has increased as shown on Schedule 1 (and any as deemed modified pursuant to the preceding subparagraph (b)) shall advance the funds necessary to effect the increase in their respective Pro Rata Shares to the Domestic Dollar Revolving Loan Sub-Commitments Administrative Agent and the Alternate Currency funds so advanced shall be immediately thereafter distributed among the Lenders whose Pro Rata Shares have decreased as necessary to accomplish the required reallocation of outstanding Revolving Loan Sub-Commitments Loans. The funds so advanced shall be Floating Rate Advances until converted to LIBO Rate Advances. To the extent such reallocation results in certain Lenders receiving funds which are applied to LIBO Rate Advances prior to the last day of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective applicable Interest Period, based upon rates then applicable thereto). In coordinating the actions Borrower shall pay to be taken pursuant to this Section 1.19(c), the Administrative Agent for the account of the affected Lenders any amounts payable with respect thereto pursuant to Section 3.4 of this Agreement.
(d) Borrower shall act with an eye towards minimizing (but no express obligation to minimize) costs pay to the Borrowers. All determinations by any Administrative Agent for distribution to each Incremental Lender pursuant to clause (iii) of such fees and other amounts, if any, as are specified in the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to relevant Incremental Revolving Loan CommitmentsCommitment Agreement, with the fees and other amounts, if any, to be payable on the respective Incremental Revolving Loan Commitment Date.
Appears in 1 contract
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Borrower shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or no more than two occasions per fiscal year of the Borrower (or, with the prior written approval of the Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) until such time, if any, as (x) such Lender (or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 1.142.14 and (y) the other conditions set forth in Section 1.19(b) Incremental Revolving Loan Commitment Requirements shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.142.14, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, or any other Person which will qualify who qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iv) each provision of any Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) added to the Total Commitment on a given date pursuant to this Section 1.19 1.142.14 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.142.14 shall not cause the Total Commitment to exceed $750,000,000, 700,000,000 (after giving effect to all such Incremental Revolving Loan Commitments in an amount not to exceed $200,000,000 in the aggregate) and (vi) all actions taken by the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided Borrower pursuant to this Section 1.19, when combined 1.142.14 shall be done in coordination with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess the Administrative Agent. For the avoidance of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19doubt, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank Lender which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any without first requesting such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without from the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentthen existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.142.14, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed)Agreement, with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by shall have been satisfied as of the Corporation that may be set forth in the respective relevant Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably requestDate. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at upon the effectiveness of such time Incremental Revolving Loan Commitment Agreement (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan or new Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected existing Lenders and each new Person added as a Lender (vprovided such new Person qualifies as an Eligible Transferee), which Commitment shall equal (x) in the case of a Person providing an Incremental Revolving Loan Commitment who was not a Lender prior to effectiveness of the Incremental Revolving Loan Commitment Agreement, an amount equal to the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement and (y) in the case of a Person providing an Incremental Revolving Loan Commitment who is an existing Lender, an amount equal to the sum of the Incremental Revolving Loan Commitment for such Person as described in such Incremental Revolving Loan Commitment Agreement plus such Lender’s Commitment immediately prior to giving effect to such Incremental Revolving Loan Commitment Agreement and (iii) to the extent requested by any Incremental RL Lender, any relevant Revolving Notes will be issued issued, at the CorporationBorrower’s expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.052.05 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of new Commitment made by such Incremental RL Lender contemplated herebyLender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.142.14, the Lenders and the Borrowers Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under of certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL of the Lenders, and incur additional Domestic Dollar or new Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Revolving Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Eurodollar Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Revolving Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.142.14), (ii) the Corporation Borrower shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 1.112.11 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) ), and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Revolving Loans which are maintained as Euro Rate Eurodollar Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c1.142.14(c), the Administrative Agent shall act with an eye towards minimizing endeavor to minimize (but shall have no express obligation to minimize) costs to the BorrowersBorrower (including, without limitation, by agreeing in its sole discretion to delay any relevant Incremental Revolving Loan Commitment Date to an end of an Interest Period). All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000400,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I13.12(e) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (( for such Eligible Transferee) of at least $5,000,000, 5,000,000 and (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J L (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, 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 other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Borrowing Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any the relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.06 (with appropriate modification) to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated hereby.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Non-Alternate Currency Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Non-Alternate Currency Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Incremental Revolving Loan Commitments. AMERICAS 94977503
(a) So long as the Incremental Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation shall have the right at At any time and from time to time prior to the Latest Maturity Date, subject to the terms and upon at least 5 conditions set forth herein, the Borrower Agent may by no less than three (3) Business Days’ prior written notice to the Administrative Agent (or such lesser number of days as may be reasonably acceptable to the Administrative Agent), to request on one or more occasions increases of the amount of the Commitments under the then existing Revolving Facility (including increases of the amount of the LC Commitments and/or the LC Sublimit, if agreed to by each Issuing Bank in its sole discretion) (each such increase, an “Incremental Revolving Facility”) denominated in Dollars (the revolving loans extended thereunder, the “Incremental Revolving Loans”), or a combination thereof; provided that:
(i) immediately before and after giving effect to each Incremental Amendment and the applicable Incremental Revolving Facility, no Event of Default has occurred and is continuing or would result therefrom and the representations and warranties in Section 5 shall be true and correct in all material respects (except that one (x) any representation and warranty that is qualified as to “materiality” or more “Material Adverse Effect” shall be true and correct in all respects and (y) any representation and warranty which expressly relates to an earlier date shall be true and correct in all material respects as of such earlier date); provided that (A) to the extent the proceeds of any Incremental Revolving Facility are intended to be applied to finance a Permitted Acquisition or other Investment permitted under Section 8.7 that constitutes the acquisition by New Holdings and/or its Subsidiaries of the outstanding Capital Stock of any Person, or of all or substantially all of the assets of any Person or of a division or line of business of any Persons, if agreed to by the Additional Incremental Lenders providing such Incremental Revolving Facility, (and/or one x) the only representations and warranties that will be required to be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or more Material Adverse Effect, in all respects) as of the applicable closing date for such Incremental Revolving Facility shall be customary “specified representations” (as determined by the Borrower Agent and Additional Incremental Lenders) and such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition or other Persons which will become agreement as are material to the interests of the Lenders, but only to the extent that New Holdings or the applicable Subsidiary has the right to terminate its obligations under such acquisition or other agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement) and (y) the only condition with respect to absence of a Default or Event of Default shall be the absence of an Event of Default at the time such acquisition or similar agreement is entered into;
(ii) the aggregate amount of Incremental Revolving Facilities outstanding on any date shall not exceed $50,000,000;
(iii) in the event that the Yield for any Incremental Revolving Facility incurred is higher than the Yield for the Initial Revolving Loans, then the Applicable Margin for the Initial Revolving Loans shall be increased to the extent necessary so that the Yield for the Initial Revolving Loans is equal to the Yield for such Incremental Revolving Facility; and AMERICAS 94977503
(iv) each Incremental Revolving Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000, provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Facilities set forth above. Any Lenders participating in an Incremental Revolving Facility, unless then a Lender, shall be reasonably acceptable to the Swing Line Lender and each Issuing Bank.
(b) Each Incremental Revolving Facility:
(i) shall be Obligations under this Agreement and the other applicable Loan Documents and shall rank pari passu in right of payment and in respect of the Collateral and with the Obligations in respect of the Commitments made available to the Borrowers, and shall not benefit from any guarantees other than from the Guarantors under the Revolving Facility or be secured by any asset other than the Collateral; provided that, notwithstanding the foregoing or anything else in this Agreement or any other Loan Document to the contrary, all amounts owing to the Swing Line Lender and each Issuing Bank with respect to any Swing Line Loans or Letters of Credit participated in by Lenders holding Commitments as provided below) provide Incremental described above shall rank pari passu with all such amounts owing to the Swing Line Lender or Issuing Bank with respect to the Initial Revolving Loan Commitments and any other Commitments secured equally and ratably therewith;
(ii) for purposes of prepayments, Incremental Revolving Facilities (A) shall be treated in the same manner as the Initial Revolving Loans and related (B) shall be subject to customary “waterfall” provisions;
(iii) all other terms of such Incremental Alternate Currency Revolving Loan Sub-Facilities shall be on the same terms applicable to the existing Revolving Facility (including the maturity date in respect thereof) and pursuant to the same documentation applicable to the existing Revolving Facility (other than the relevant Incremental Amendment); provided that, notwithstanding the foregoing, if the Borrower Agent determines to increase the interest rate or fees payable in respect of Incremental Revolving Facilities or Incremental Revolving 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 Commitments with 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 Facilities or Incremental Revolving Loans and other extensions of credit made thereunder, as the case may be.
(c) Each notice from the Borrower Agent pursuant to one this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Facility. Any additional bank, financial institution, existing Lender or more Alternate Currency other Person that elects to provide Commitments under an Incremental Revolving Loan Sub-TranchesFacility shall be reasonably satisfactory to the Borrower Agent, the Administrative Agent, each Issuing Bank and the Swing Line Lender, such consent of each Issuing Bank and Swing Line Lender to be required, in each case, to the extent required under Section 11.6(c) (in each case, such consent not to be unreasonably withheld, conditioned or delayed) (any such bank, financial institution, existing Lender or other Person being called an “Additional Incremental Lender”) and, subject if AMERICAS 94977503 not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the applicable terms other Loan Documents, the Borrowers, such Additional Incremental Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no the Administrative Agent. No Lender shall be obligated to provide any Commitments under an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationFacility, (ii) until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment unless it so agrees (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered Lender that does not respond shall be conclusively presumed not to the Administrative Agent an agree to provide additional Commitments). Commitments in respect of any Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of Facilities shall become Commitments under this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfiedAgreement. An Incremental Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.19, (iii) any Lender (or, in the circumstances contemplated by clause (vii) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Lenders, effect such amendments to any Loan Commitment Requirements), (iv) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall Documents as may be in a minimum aggregate amount (for all Lenders (includingnecessary or appropriate, in the circumstances contemplated by clause (vii) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,000, (vi) the aggregate amount of all Incremental Alternate Currency Revolving Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation as provided below), then the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent reasonable opinion of the Administrative Agent, and (ix) all actions taken by to effect the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to provisions of this Section 1.19 shall be done in coordination with (including to provide for voting provisions applicable to the Administrative Agent.
(b) In connection with Additional Incremental Lenders comparable to the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this provisions of Section 1.19, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case 11.1). The proceeds of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19), the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide Loans under an Incremental Revolving Loan Commitment (and Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J (appropriately completed), with the effectiveness of such Incremental RL Lender’s Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith other purposes not prohibited hereunder (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative AgentRestricted Payments and acquisitions).
(d) and the satisfaction of the other conditions Each Lender in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount respect of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement Facility shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyan Eligible Assignee.
(ce) In connection with This Section 2.5 shall supersede any provision of Incremental Revolving Loan Commitments pursuant to this provisions in Section 1.19, the Lenders and the Borrowers hereby agree that, notwithstanding anything 4.16 or 11.1 to the contrary contained in this Agreement, (i) the relevant Borrowers shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 in connection with any repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan Commitments.contrary
Appears in 1 contract
Incremental Revolving Loan Commitments. (a) So long as the Incremental Revolving Loan Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Corporation Silgan shall have the right right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Agents (except as otherwise provided in this Section 1.15) or the Lenders, to request at any time and from time to time after the Initial Borrowing Date and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one or more occasions Incremental Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowRevolving Lenders) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; it being understood and agreed, however, provided that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the Corporation, (ii) and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent Agent, Silgan and the Revolving Borrowers an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (if any) or participate in any Alternate Currency Revolving Letters of Credit or Swingline Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche)RL Percentage, in each case case, as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.15, (iiiii) any Lender (or, in the circumstances contemplated by clause (vii) below, including any other Person which will qualify as is an Eligible TransfereeTransferee who will become a Revolving Lender) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any Agent or any other Lender; provided that any Person that is not a Revolving Lender (other than prior to the Administrative Agent in the circumstances contemplated by the definition effectiveness of its Incremental Revolving Loan Commitment Requirements)shall require the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) to provide an Incremental Revolving Loan Commitment pursuant to this Section 1.15, (iviii) the aggregate amount of each request (and provision of therefor) for Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 shall be in a minimum aggregate amount (for all Lenders which provide an Incremental Revolving Loan Commitment pursuant to a given Incremental Revolving Loan Commitment Agreement pursuant to this Section 1.15 (including, in the circumstances contemplated by clause (vii) below, including Persons who are Eligible Transferees who and will become Revolving Lenders)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof50,000,000, (viv) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 1.15 shall not exceed in the aggregate the lesser of (A) $750,000,000, 150,000,000 and (viB) when combined with the aggregate amount of all Incremental Alternate Currency Revolving Term Loan Sub-Commitments permitted to be provided pursuant to Section 1.14, $350,000,000 (for this Section 1.19purpose, when combined with using the Dollar Equivalent of any Incremental Term Loan Commitments provided in an Alternate Currency), (v) all Loans incurred pursuant to an Incremental Revolving Loan Commitment (and all increases interest, fees and other amounts payable thereon) (including, without limitation, such Revolving Loans incurred by a Foreign Revolving Borrower) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the US Collateral, and guaranteed under the US Borrowers/Subsidiaries Guaranty, on a pari passu basis with all other Revolving Loans, (vi) all Revolving Loans incurred pursuant to Section 13.12(e)(I) to Alternate Currency an Incremental Revolving Loan Sub-Commitments relating Commitment (and all interest, fees and other amounts payable thereon) incurred by a Foreign Revolving Borrower also shall be secured and guaranteed to the extent required by Section 5.04(b), and (vii) each Alternate Currency Lender (including any Person which is an Eligible Transferee who will become a Revolving Lender) agreeing to provide an Incremental Revolving Loan Sub-Tranche in excess Commitment pursuant to an Incremental Revolving Loan Commitment Agreement shall, subject to the satisfaction of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche, shall not exceed $150,000,000, (vii) if after the Corporation has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.19, the Corporation has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation desires to obtain pursuant to such request (as conditions set forth in the notice provided by the Corporation this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 1.01(f) and 2.04, respectively, and make Revolving Loans as provided below), then in Section 1.01(d) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the Corporation may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,000, (viii) no Incremental Alternate Currency Revolving Loan Sub-Commitment with respect to a Permitted Non-LIBOR-Based Alternate Currency shall be provided pursuant to this Section 1.19 without the consent of the Administrative Agent, and (ix) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) pursuant to this Section 1.19 shall be done in coordination with the Administrative Agentother applicable Credit Documents.
(b) In connection with At the time of the provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.15, (i) the CorporationSilgan, any relevant Alternate Currency each Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, each other Credit Party, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an Incremental Revolving Loan Commitment (and any related each, an "Incremental Alternate Currency Revolving Loan Sub-CommitmentsLender") shall execute and deliver to Silgan, each Revolving Borrower and the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J Agreement, appropriately completed (appropriately completed), with the effectiveness of such Incremental RL Lender’s the Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided therein to occur upon delivery of on the date set forth in such Incremental Revolving Loan Commitment Agreement to Agreement, which date in any event shall be no earlier than the Administrative Agent, the payment of any date on which (i) all fees required to be paid in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing to at the Administrative Agent) and the satisfaction time of the other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agentsuch effectiveness shall have been paid, (ii) the all Incremental Revolving Loan Commitment Effectiveness Requirements have been satisfied, (iii) all conditions set forth in this Section 1.15 shall have been satisfied and any (iv) all other conditions precedent agreed to by the Corporation that may be set forth in the respective such Incremental Revolving Loan Commitment Agreement shall have been satisfied, and (iii) the Corporation shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Date pursuant to Section 5.02 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment AgreementAgreement and, and at such time (i) the Total Revolving Loan Commitment undertime, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Incremental Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyRevolving Lenders.
(c) In connection with It is understood and agreed that the Incremental Revolving Loan Commitments provided by an Incremental Revolving Lender or Incremental Revolving Lenders, as the case may be, pursuant to each Incremental Revolving Loan Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment and each Incremental Revolving Lender shall constitute a Revolving Lender for all purposes of this Agreement and each other applicable Credit Document.
(d) At the time of any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.15, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers each Revolving Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency of certain of the Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches owing to certain RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Revolving Lenders (including the Incremental RL Revolving Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Revolving Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages respective Revolving Loan Commitments (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.15) and (II) all Alternate Currency RL Lenders with a given Alternate Currency the Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating Borrowers being obligated to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Revolving Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any such repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan CommitmentsBorrowing.
Appears in 1 contract
Incremental Revolving Loan Commitments. (a) So long as no -------------------------------------- Default or Event of Default then exists or would result therefrom, the Incremental Revolving Loan Commitment Requirements are satisfied at Borrower, with the time prior consent of the delivery of the request referred to belowAdministrative Agent (which consent shall not be unreasonably withheld or delayed), the Corporation shall have the right at any time and from time to time and upon at least 5 Business Days’ prior written notice to the Administrative Agent, to request on one up to three occasions on or more occasions prior to the Incremental Commitment Expiry Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments with respect to one or more Alternate Currency Revolving Loan Sub-Tranches) and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment (or a related Incremental Alternate Currency Revolving Loan Sub-Commitment) as a result of any such request by the CorporationBorrower, (ii) and until such time, if any, as (x) such Lender has agreed in its sole discretion to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) and executed and delivered to the Administrative Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.19 and (y) the other conditions set forth in Section 1.19(b) shall have been satisfied1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (or any Alternate Currency Revolving Loans under a given Alternate Currency Revolving Loan Sub-Tranche in excess of its Alternate Currency Revolving Loan Sub-Commitment relating to such Alternate Currency Revolving Loan Sub-Tranche), in each case as in effect prior to giving effect to such Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) provided pursuant to this Section 1.191.15, (iiiii) any Lender (or, in the circumstances contemplated by clause (viiv) below, any other Person which will qualify as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) without the consent of any other Lender (other than the Administrative Agent in the circumstances contemplated by the definition of Incremental Revolving Loan Commitment Requirements)Lender, (iviii) each provision of Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitment) on a given date pursuant to this Section 1.19 1.15 shall be in a minimum aggregate amount (for all Lenders (including, in the circumstances contemplated by clause (viiv) below, Eligible Transferees who will become Lenders)) of at least $10,000,000 25,000,000 and in integral multiples of $1,000,000 in excess thereof, (viv) the aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to this Section 1.19 shall not exceed $750,000,0001.15, (vi) when combined with the aggregate amount of all Incremental Alternate Currency Revolving B Term Loan Sub-Commitments permitted to be provided pursuant to this Section 1.19, when combined with any and all increases pursuant to Section 13.12(e)(I) to Alternate Currency Revolving Loan Sub-Commitments relating to each Alternate Currency Revolving Loan Sub-Tranche in excess of the relevant Alternate Currency Revolving Loan Sub-Commitment Sub-Limit (for this purposes, determined without regard to the proviso in the definition thereof) for the respective Alternate Currency Revolving Loan Sub-Tranche1.14, shall not exceed $150,000,000100,000,000, (viiv) if if, after the Corporation Borrower has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) pursuant to this Section 1.191.15, the Corporation Borrower has not received Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) in an aggregate amount equal to that amount of the Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) which the Corporation Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Corporation Borrower to the Administrative Agent as provided belowabove), then the Corporation Borrower may request Incremental Revolving Loan Commitments (and related Incremental Alternate Currency Revolving Loan Sub-Commitments, if applicable) from Persons reasonably acceptable to the Administrative Agent and each Issuing Bank which would qualify as Eligible Transferees hereunder in an aggregate amount equal to such deficiency, in any such case on terms which are no more favorable to such Eligible Transferee in any respect than the terms offered to the Lenders, provided that any such Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) provided by any such Eligible Transferee which is not already a Lender shall be in a minimum amount (for such Eligible Transferee) of at least $5,000,0001,000,000, (viiivi) no prior to the effectiveness of any Incremental Alternate Currency Revolving Loan Sub-Commitment with respect Commitments, the Borrower shall have certified to a Permitted Non-LIBOR-Based Alternate Currency shall the Administrative Agent that the aggregate principal amount of all Revolving Loans permitted to be provided incurred pursuant to this Section 1.19 such Incremental Revolving Loan Commitments is permitted to be incurred under, and in accordance with, the Senior Subordinated Note Indenture (including, without limitation, by providing to the consent Administrative Agent (x) an officer's certificate of the Administrative AgentBorrower's chief financial officer or treasurer demonstrating (in reasonable detail) that the incurrence of all such Revolving Loans may be incurred in accordance with, and will not violate the provisions of, the Senior Subordinated Note Indenture (including, to the extent applicable, the proviso to Section 4.03 of the Senior Subordinated Note Indenture), and (ixy) officers' certificate referred to in clause (6) of the definition of "Senior Debt" set forth in the Senior Subordinated Note Indenture), and (vii) all actions taken by the Corporation (and any Alternate Currency Revolving Loan Borrower) Borrower pursuant to this Section 1.19 1.15 shall be done in coordination with the Administrative Agent.
(b) In connection with the Incremental Revolving Loan Commitments (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to be provided pursuant to this Section 1.191.15, (i) the Corporation, any relevant Alternate Currency Revolving Loan Borrower (in the case of any Incremental Alternate Currency Revolving Loan Sub-Commitments to be provided pursuant to this Section 1.19)Borrower, the Administrative Agent and each such Lender or other Eligible Transferee (each, an “"Incremental RL Lender”") which agrees to provide an Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) shall execute and deliver to the Administrative Agent an Incremental Revolving Loan Commitment Agreement substantially in the form of Exhibit J D (appropriately completed), with the effectiveness of such Incremental RL Lender’s 's Incremental Revolving Loan Commitment (and any related Incremental Alternate Currency Revolving Loan Sub-Commitments) to occur upon delivery of such Incremental Revolving Loan Commitment Agreement to the Administrative Agent, the payment of any fees required in connection therewith (including, without limitation, any agreed upon up-front or arrangement fees owing payable pursuant to the Administrative Agentclause (ii) below) and the satisfaction of the other conditions in this Section 1.19(b) to the reasonable satisfaction of the Administrative Agent, (ii) the Incremental Revolving Loan Commitment Requirements and any other conditions precedent agreed to by the Corporation that may be set forth in the respective such Incremental Revolving Loan Commitment Agreement Agreement, (ii) the Administrative Agent shall have been satisfiedreceive from the Borrower (or, to the extent agreed to by the Borrower and the respective Incremental RL Lender, from such respective Incremental RL Lender) the payment of a non-refundable fee of $3,500 for each Eligible Transferee which becomes a Lender pursuant to this Section 1.15 and (iii) the Corporation Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties Borrower reasonably satisfactory to the Administrative Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Effective Initial Borrowing Date pursuant to Section 5.02 5.03 as may be reasonably requested by the Administrative Agent, and such other matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Commitment Agreement, and at such time time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Loan Commitments, and (ii) the Total Alternate Currency Revolving Loan Sub-Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of any Incremental Alternate Currency Revolving Loan Sub-Commitments made available under the respective Incremental Revolving Loan Commitment Agreement, (iii) each Alternate Currency Revolving Loan Sub-Commitment of the respective Incremental RL Lender relating to any relevant Incremental Alternate Currency Revolving Loan Sub-Commitment made available under the respective Incremental Revolving Loan Commitment Agreement under, and for all purposes of, this Agreement shall be increased by the amount of such Incremental Alternate Currency Revolving Loan Sub-Commitment, (iv) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments (and related Alternate Currency Revolving Loan Sub-Commitments, if applicable) of the affected Lenders and (v) to the extent requested by any Incremental RL Lender, any relevant Notes will be issued at the Corporation’s expense, to such Incremental RL Lender, to the extent needed to reflect the increases to the Revolving Loan Commitments (and any related Alternate Currency Revolving Loan Sub-Commitments) of such Incremental RL Lender contemplated herebyLenders.
(c) In connection with At the time of any provision of Incremental Revolving Loan Commitments pursuant to this Section 1.191.15, the Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the relevant Borrowers Borrower shall, in coordination with the Administrative Agent, (x) repay outstanding Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under of certain Alternate Currency Revolving Loan Sub-Tranches owing to certain of the RL Lenders, and incur additional Domestic Dollar Revolving Loans and/or Alternate Currency Revolving Loans under certain Alternate Currency Revolving Loan Sub-Tranches from certain other RL Lenders (including the Incremental RL Lenders) or (y) take such other actions as may be reasonably required by the Administrative Agent (including by requiring new Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche to be incurred and added to then outstanding Borrowings of the respective such Loans, even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that (I) all of the RL Lenders effectively participate in each outstanding Borrowing of Domestic Dollar Revolving Loans pro rata on the basis of their Domestic RL Dollar Percentages respective Revolving --- ---- Loan Commitments (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.191.15) and (II) all Alternate Currency RL Lenders with a given Alternate Currency Revolving Loan Sub-Commitment effectively participate in each outstanding Borrowing of Alternate Currency Revolving Loans under the related Alternate Currency Revolving Loan Sub-Tranche pro rata on the basis of their Alternate Currency RL Percentages relating Borrower being obligated to such Alternate Currency Revolving Loan Sub-Tranche (determined after giving effect to any increase in the Total Revolving Loan Commitment (and any increase in the Domestic Dollar Revolving Loan Sub-Commitments and the Alternate Currency Revolving Loan Sub-Commitments of the Incremental RL Lenders) pursuant to this Section 1.19), (ii) the Corporation shall pay (or cause to be paid) to the respective RL Lenders any costs of the type referred to in Section 1.12 1.11 in connection with any such repayment and/or Borrowing required pursuant to preceding clause (i) and (iii) to the extent Domestic Dollar Revolving Loans or Alternate Currency Revolving Loans pursuant to a given Alternate Currency Revolving Loan Sub-Tranche are to be so incurred or added to the then outstanding Borrowings of the respective such Loans which are maintained as Euro Rate Loans, the Lenders that have made such Loans shall be entitled to receive from the Borrowers such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto). In coordinating the actions to be taken pursuant to this Section 1.19(c), the Administrative Agent shall act with an eye towards minimizing (but no express obligation to minimize) costs to the Borrowers. All determinations by any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. For avoidance of doubt, the amount of any Sub-Commitments may be increased pursuant to Incremental Revolving Loan CommitmentsBorrowing.
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Samples: Credit Agreement (Manitowoc Co Inc)
