Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent (which notice shall not obligate the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment (each such increase, a “Facility Increase”); provided that: (a) no Default or Event of Default shall have occurred and be continuing or would result from any such requested Facility Increase or borrowings thereunder; (b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates; (c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof; (d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000; (e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit; (f) the Commitment of any Lender shall not be increased without the approval of such Lender; (g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company; (h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase; (i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date; (j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and (k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.
Appears in 2 contracts
Sources: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Optional Increase of Commitments. At any time following the Closing Date, the Company Administrative Borrower shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent (which notice shall not obligate the Company Borrowers to increase the Aggregate Commitment) to increase the Aggregate Commitment (each such increase, a “Facility Increase”); provided that:
(a) no Default or Event of Default shall have occurred and be continuing or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 5,000,000 or a whole multiple of $10,000,000 1,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,00050,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender Borrowers shall first provide all then existing Lenders with an opportunity to commit to such Facility Increase on a ratable basis (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or and, if, within ten (ii10) Business Days after the Administrative Borrower has delivered notice thereof to such existing Lenders, sufficient commitments cannot be obtained from such existing Lenders (it being agreed that any Lender that does not deliver a notice of such Lender’s intention to commit to such Facility Increase within such period shall be deemed to have declined to commit to such Facility Increase), then the Borrowers may seek commitments from other Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the CompanyBorrowers or from existing Lenders in an amount in excess of such Lender’s ratable share of such Facility Increase;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the CompanyAdministrative Borrower’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increaseincrease other than a change in the Lenders’ Pro Rata Shares to reflect the Facility Increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.
Appears in 2 contracts
Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent (which notice shall not obligate the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment (each such increase, a “Facility Increase”); provided that:
(a) no Default or Event of Default shall have occurred and be continuing or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 5,000,000 or a whole multiple of $10,000,000 1,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,00025,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender shall first provide all then existing Lenders with an opportunity to commit to such Facility Increase on a ratable basis (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or and, if, within ten (ii10) Business Days after the Company has delivered notice thereof to such existing Lenders, sufficient commitments cannot be obtained from such existing Lenders (it being agreed that any Lender that does not deliver a notice of such Lender’s intention to commit to such Facility Increase within such period shall be deemed to have declined to commit to such Facility Increase), then the Company may seek commitments from other Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the CompanyCompany or from existing Lenders in an amount in excess of such Lender’s ratable share of such Facility Increase;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increaseincrease other than a change in the Lenders’ Pro Rata Shares to reflect the Facility Increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.
Appears in 2 contracts
Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from any after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders in writing to increase their respective Commitments (proportionately based on their Ratable Shares or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested Facility Increase by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in an aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may designate one or borrowings thereundermore financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Agent, who shall promptly notify the Lenders;
(b) all representations and warranties contained herein and in that the other Loan Documents Borrowers shall be true and correct in all material respects with have delivered to the same effect as though such representations and warranties had been made on and as of the date Agent a copy of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective datesCommitment Acceptance;
(c) each Facility Increase shall be in an aggregate principal that the amount of at least $50,000,000 or a whole multiple of $10,000,000 such increase, together with all other increases in excess thereof;
(d) the aggregate amount of all Facility Increases made the Commitments pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase or otherwise affect 3.12 since the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.does not exceed $100,000,000;
Appears in 2 contracts
Sources: Credit Agreement (Lincoln Electric Holdings Inc), Credit Agreement (Lincoln Electric Holdings Inc)
Optional Increase of Commitments. At The Borrower may at any time following the Closing Date, the Company shall have the right, and from time to time and time, upon not less than fifteen five (155) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) days’ prior written notice to the Administrative Agent (which notice shall not obligate the Company to Agent, increase the Aggregate CommitmentCommitments (but not the Letter of Credit Sublimit or the Swing Line Sublimit) with additional Commitments from any existing Lender with a Commitment or new Commitments from any other Person selected by the Borrower and reasonably acceptable to increase the Aggregate Commitment (each such increaseAdministrative Agent, a “Facility Increase”)the Swing Line Lender and the Issuers; provided that:
(ai) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Unmatured Default shall have occurred exist and be continuing or would result from at the time of any such requested Facility Increase or borrowings thereunderincrease;
(biii) all representations and warranties contained herein and in the other Loan Documents no existing Lender shall be true under any obligation to increase its Commitment and correct any such decision whether to increase its Commitment shall be in all material respects with such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing such joinder documents required by the same effect Administrative Agent and/or (B) any existing Lender electing to increase its Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as though a condition precedent to such representations increase, the Borrower shall deliver to the Administrative Agent (A) a certificate of each of the Borrower, the Guarantor and warranties had been made on and KCPL dated as of the date of such Facility Increase increase (in sufficient copies for each Lender) signed by an Authorized Officer of such Person certifying and attaching the resolutions adopted by such Person approving or consenting to such increase, and (B) a certificate of the Borrower certifying that, before and after giving effect theretoto such increase, except to (x) the extent that such representations and warranties expressly relate solely to an earlier date (contained in which case such representations Article VI and warranties shall have been the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (y) no Default or Unmatured Default exists as of such date; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct and
(vi) after giving effect to the increase in the Commitments (but without giving effect to any qualification thereinincrease in the Commitments pursuant to Sections 2.6(c) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) )), the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Aggregate Commitment of any Lender shall not be increased without greater than SIX HUNDRED AND FIFTY MILLION DOLLARS ($650,000,000). The Borrower shall prepay any Loans owing by it and outstanding on the approval date of any such Lender;
(g) in connection increase with each proposed Facility Increase, the Company may solicit commitments from (i) proceeds required to be advanced by any Lender increasing its, or any Person providing a new, Commitment under this Section (provided that no Lender shall have an obligation and pay any additional amounts required pursuant to commit Article III) to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable extent necessary to both keep the Administrative Agent and the Company;
(h) outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to Commitments under this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereofSection.
Appears in 1 contract
Optional Increase of Commitments. At any time following To the Closing extent that the total Commitments for all Lenders is less than $2,500,000,000 on the Effective Date, the Company shall have the rightBorrower may, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent and the Lenders (which notice shall not obligate a “New Commitment Notice”), elect to request an increase to the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment existing Commitments (each any such increase, the “New Commitments”) in a “Facility Increase”)minimum amount of $5,000,000 and up to an amount equal to the difference between $2,500,000,000 and the Commitments as of the date prior to the making of such New Commitments. Each Lender shall have 5 Business Days from receipt of such New Commitment Notice to elect to provide all or a portion of the New Commitments; provided that:
, in the event that the total New Commitments requested to be provided by the Lenders exceeds the maximum amount of the New Commitments requested by the Borrower, each Lender’s portion of the New Commitments shall be reduced pro rata based on the percentage that such ▇▇▇▇▇▇’s proposed commitments bears to the total amount of New Commitments requested by all Lenders. Each such New Commitment Notice shall specify the date (aeach, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a Payment Date that is not less than 10 Business Days after the date on which such New Commitment Notice is delivered to the Administrative Agent and the Lenders. Following the expiration of the Lenders exclusivity period the Borrower shall be entitled to solicit New Commitments for other Persons that are not existing Lenders that are Eligible Assignees (each, a “New Lender”). No later than 2 Business Days prior to the Increased Amount Date the Borrower shall notify the Administrative Agent and each Lender of (i) the identity of each existing Lender (each, an “Increasing Lender”) and each New Lender and (ii) the portion of such New Commitments to be allocated to such New Lenders and Increasing Lenders; provided that, for the avoidance of doubt, any existing Lender approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment; provided further that (x) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification thereinsuch New Commitments and (y) in all respects on such respective dates;
(c) each Facility Increase the New Commitments shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made effected pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase one or otherwise affect more Accession Agreements executed and delivered by the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility IncreaseBorrower, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing New Lender or any new lender commits to such requested Facility IncreaseIncreasing Lender, (i) any new lender will execute an accession agreement to this Agreementas applicable, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify Agent. Eighth Amended and Restated Credit Agreement 73 #4890-1996-9475v9 On any Increased Amount Date on which New Commitments are effected, subject to the Administrative Borrower and the Lenders satisfaction of the final allocation foregoing terms and conditions, the Borrower shall borrow from the New Lenders and Increasing Lenders an amount of such Facility Increase and Increase Effective Date;
(j) new Advances the Administrative Agent and proceeds of which will be applied to prepay the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all outstanding Advances of the terms and conditions of this Agreementexisting Lenders, and shall be secured by the Collateral and guaranteed by Guarantors pursuant in each case so that after giving pro forma effect to the terms hereofNew Commitments, such Advances and such prepayments, each Lender holds Advances on a pro rata basis based on the new amount of total Commitments.
Appears in 1 contract
Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto), except the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole that is an integral multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall 1,000,000 and not exceed less than $200,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the 10,000,000). The Borrowers shall make such borrowings and repayments as shall be necessary to affect first request the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 existing Lenders in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed writing to increase their respective Commitments (proportionately based on their Ratable Shares or make new commitments on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in response an aggregate amount at least equal to the Company’s request for increase requested by the Borrowers, the Borrowers may designate one or more financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Agent, who shall promptly notify the Lenders; 1095144433\6\AMERICAS
(b) that the Borrowers shall have delivered to the Agent a copy of such Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in the aggregate amount of the Commitments pursuant to this Section 2.7 and which other changes do not adversely affect 3.12 since the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.does not exceed $150,000,000;
Appears in 1 contract
Optional Increase of Commitments. At The Borrower may at any time following the Closing Date, the Company shall have the right, and from time to time and time, upon not less than fifteen five (155) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) days’ prior written notice to the Administrative Agent (which notice shall not obligate the Company to Agent, increase the Aggregate CommitmentCommitments (but not the Letter of Credit Sublimit or the Swing Line Sublimit) with additional Commitments from any existing Lender with a Commitment or new Commitments from any other Person selected by the Borrower and reasonably acceptable to increase the Aggregate Commitment (each such increaseAdministrative Agent, a “Facility Increase”)the Swing Line Lender and the Issuers; provided that:
(ai) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Unmatured Default shall have occurred exist and be continuing or would result from at the time of any such requested Facility Increase or borrowings thereunderincrease;
(biii) all representations and warranties contained herein and in the other Loan Documents no existing Lender shall be true under any obligation to increase its Commitment and correct any such decision whether to increase its Commitment shall be in all material respects with such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing such joinder documents required by the same effect Administrative Agent and/or (B) any existing Lender electing to increase its Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as though a condition precedent to such representations increase, the Borrower shall deliver to the Administrative Agent (A) a certificate of each of the Borrower, the GuarantorParent and warranties had been made on and KCPL dated as of the date of such Facility Increase increase (in sufficient copies for each Lender) signed by an Authorized Officer of such Person certifying and attaching the resolutions adopted by such Person approving or consenting to such increase, and (B) a certificate of the Borrower certifying that, before and after giving effect theretoto such increase, except to (x) the extent that such representations and warranties expressly relate solely to an earlier date (contained in which case such representations Article VI and warranties shall have been the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (y) no Default or Unmatured Default exists as of such date; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct and
(vi) after giving effect to the increase in the Commitments (but without giving effect to any qualification thereinincrease in the Commitments pursuant to Sections 2.6(c) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) )), the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Aggregate Commitment of any Lender shall not be increased without greater than SIX HUNDRED AND FIFTY MILLION DOLLARS ($650,000,000). The Borrower shall prepay any Loans owing by it and outstanding on the approval date of any such Lender;
(g) in connection increase with each proposed Facility Increase, the Company may solicit commitments from (i) proceeds required to be advanced by any Lender increasing its, or any Person .CHAR1\1170499v7 providing a new, Commitment under this Section (provided that no Lender shall have an obligation and pay any additional amounts required pursuant to commit Article III) to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable extent necessary to both keep the Administrative Agent and the Company;
(h) outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to Commitments under this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereofSection.
Appears in 1 contract
Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from any after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders in writing to increase their respective Commitments (proportionately based on their Ratable Shares or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested Facility Increase by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in an aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may designate one or borrowings thereundermore financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Administrative Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Administrative Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Administrative Agent, who shall promptly notify the Lenders;
(b) that the Borrowers shall have delivered to the Administrative Agent a copy of such Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in the aggregate amount of the Commitments pursuant to this Section 3.12 since the date of this Agreement, does not exceed $75,000,000;
(d) that, before and after giving effect to such increase, the representations and warranties of the Borrowers contained herein and in the other Loan Documents Article 10 of this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, (except to the extent that any such representations and warranties representation or warranty expressly relate solely relates to an earlier date (date, in which case such representations and warranties it shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;and
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify have received such evidence (including an opinion of Borrowers’ counsel) as it may reasonably request to confirm the Administrative Borrower Borrowers’ due authorization of the transactions contemplated by this Section 3.12 and the Lenders validity and enforceability of the final allocation obligations of the Borrowers resulting therefrom. On the date of any such Facility Increase and Increase Effective Date;
(j) increase, the Borrowers shall be deemed to have represented to the Administrative Agent and the Lenders shall that the conditions set forth in clauses (a) through (e) above have received been satisfied. Upon any fees and expenses payable by increase in the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all aggregate amount of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors Commitments pursuant to the terms hereof.this Section 3.12:
Appears in 1 contract
Optional Increase of Commitments. At The Borrower may at any time following the Closing Date, the Company shall have the right, and from time to time and time, upon not less than fifteen five (155) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) days’ prior written notice to the Administrative Agent (which notice shall not obligate the Company to Agent, increase the Aggregate CommitmentCommitments (but not the Letter of Credit Sublimit or the Swing Line Sublimit) with additional Commitments from any existing Lender with a Commitment or new Commitments from any other Person selected by the Borrower and reasonably acceptable to increase the Aggregate Commitment (each such increaseAdministrative Agent, a “Facility Increase”)the Swing Line Lender and the Issuers; provided that:
(ai) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Unmatured Default shall have occurred exist and be continuing or would result from at the time of any such requested Facility Increase or borrowings thereunderincrease;
(biii) all representations and warranties contained herein and in the other Loan Documents no existing Lender shall be true under any obligation to increase its Commitment and correct any such decision whether to increase its Commitment shall be in all material respects with such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing such joinder documents required by the same effect Administrative Agent and/or (B) any existing Lender electing to increase its Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as though a condition precedent to such representations increase, the Borrower shall deliver to the Administrative Agent (A) a certificate of each of the Borrower, KCPL and warranties had been made on and KCPL GMO dated as of the date of such Facility Increase increase (in sufficient copies for each Lender) signed by an Authorized Officer of such Person certifying and attaching the resolutions adopted by such Person approving or consenting to such increase, and (B) a certificate of the Borrower certifying that, before and after giving effect theretoto such increase, except to (x) the extent that such representations and warranties expressly relate solely to an earlier date (contained in which case such representations Article V and warranties shall have been the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (y) no Default or Unmatured Default exists as of such date; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct and
(vi) after giving effect to the increase in the Commitments (but without giving effect to any qualification therein) increase in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
the Commitments pursuant to Sections 2.6(c), (d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;
), (e) Facility Increases shall not increase ), or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) )), the Aggregate Commitment of any Lender shall not be increased without greater than FOUR HUNDRED MILLION DOLLARS ($400,000,000). The Borrower shall prepay any Loans owing by it and outstanding on the approval date of any such Lender;
(g) in connection increase with each proposed Facility Increase, the Company may solicit commitments from (i) proceeds required to be advanced by any Lender increasing its, or any Person providing a new, Commitment under this Section (provided that no Lender shall have an obligation and pay any additional amounts required pursuant to commit Article III) to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable extent necessary to both keep the Administrative Agent and the Company;
(h) outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to Commitments under this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereofSection.
Appears in 1 contract
Optional Increase of Commitments. At The Borrower may at any time following the Closing Date, the Company shall have the right, and from time to time and time, upon not less than fifteen five (155) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) days’ prior written notice to the Administrative Agent (which notice shall not obligate the Company to Agent, increase the Aggregate CommitmentCommitments (but not the Letter of Credit Sublimit or the Swing Line Sublimit) with additional Commitments from any existing Lender with a Commitment or new Commitments from any other Person selected by the Borrower and reasonably acceptable to increase the Aggregate Commitment (each such increaseAdministrative Agent, a “Facility Increase”)the Swing Line Lender and the Issuers; provided that:
(ai) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Event of Unmatured Default shall have occurred exist and be continuing or would result from at the time of any such requested Facility Increase or borrowings thereunderincrease;
(biii) all representations and warranties contained herein and in the other Loan Documents no existing Lender shall be true under any obligation to increase its Commitment and correct any such decision whether to increase its Commitment shall be in all material respects with such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing such joinder documents required by the same effect Administrative Agent and/or (B) any existing Lender electing to increase its Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as though a condition precedent to such representations increase, the Borrower shall deliver to the Administrative Agent (A) a certificate of each of the Borrower, Great Plains and warranties had been made on and KCPL GMO dated as of the date of such Facility Increase increase (in sufficient copies for each Lender) signed by an Authorized Officer of such Person certifying and attaching the resolutions adopted by such Person approving or consenting to such increase, and (B) a certificate of the Borrower certifying that, before and after giving effect theretoto such increase, except to (x) the extent that such representations and warranties expressly relate solely to an earlier date (contained in which case such representations Article V and warranties shall have been the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (y) no Default or Unmatured Default exists as of such date; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct and
(vi) after giving effect to the increase in the Commitments (but without giving effect to any qualification thereinincrease in the Commitments pursuant to Sections 2.6(c) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) )), the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Aggregate Commitment of any Lender shall not be increased without greater than EIGHT HUNDRED MILLION DOLLARS ($800,000,000). The Borrower shall prepay any Loans owing by it and outstanding on the approval date of any such Lender;
(g) in connection increase with each proposed Facility Increase, the Company may solicit commitments from (i) proceeds required to be advanced by any Lender increasing its, or any Person providing a new, Commitment under this Section (provided that no Lender shall have an obligation and pay any additional amounts required pursuant to commit Article III) to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable extent necessary to both keep the Administrative Agent and the Company;
(h) outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to Commitments under this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereofSection.
Appears in 1 contract
Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). The Borrowers may request any existing Lender or Lenders to increase their respective Commitments or may designate one or more financial institutions not theretofore a Lender to become a Lender (such requested Facility Increase designation to be effective only with the prior written consent of the Lead Agent, the Swingline Loan Lender and the Letter of Credit Issuer, which consents will not be unreasonably withheld, conditioned or borrowings thereunderdelayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Lead Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Lead Agent, who shall promptly notify the Lenders;
(b) that the Borrowers shall have delivered to the Lead Agent a copy of such Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in the aggregate amount of the Commitments pursuant to this Section 3.12 since the date of this Agreement, does not exceed $300,000,000;
(d) that, before and after giving effect to such increase, the representations and warranties of the Borrowers contained herein and in the other Loan Documents Article 10 of this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, (except to the extent that any such representations and warranties representation or warranty expressly relate solely relates to an earlier date (date, in which case such representations and warranties it shall have been true and correct in all material respects on and as of such earlier date); provided and
(e) that the Lead Agent shall have received such evidence (including an opinion of ▇▇▇▇▇▇▇▇▇’ counsel in form and substance reasonably satisfactory to the Lead Agent) as it may reasonably request to confirm the Borrowers’ due authorization of the transactions contemplated by this Section 3.12 and the validity and enforceability of the obligations of the Borrowers resulting therefrom. On the date of any representation or warranty that is qualified as to “materiality”such increase, “Material Adverse Effect” or similar language the Borrowers shall be true deemed to have represented to the Agents and correct the Lenders that the conditions set forth in clauses (a) through (e) above have been satisfied (or waived). Upon any increase in the aggregate amount of the Commitments pursuant to this Section 3.12:
(x) within five Banking Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Term SOFR Rate Loans then outstanding, the Borrowers shall prepay such Loans in their entirety and, to the extent the Borrowers elect to do so and subject to the conditions specified in this Agreement, the Borrowers shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to any qualification therein) such increase, until such time as all outstanding Loans are held by the Lenders in all respects on such respective dates;proportion; and
(cy) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made existing Lender whose Commitment has not increased pursuant to this Section 2.7 3.12 (each, a “Non-Increasing Lender”) shall not exceed $200,000,000;
be deemed, without further action by any party hereto, to have sold to each Lender whose Commitment has been assumed or increased under this Section 3.12 (eeach, an “Increased Commitment Lender”), and each Increased Commitment Lender shall be deemed, without further action by any party hereto, to have purchased from each Non-Increasing Lender, a participation (on the terms specified in this Agreement) Facility Increases shall not increase or otherwise affect the in each Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any in which such Non-Increasing Lender shall not be increased without the approval of such Lender;
(g) has acquired a participation in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits amount equal to such requested Facility IncreaseIncreased Commitment Lender’s Ratable Share thereof, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment until such time as all Letter of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of Credit exposures are held by the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary in proportion to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response after giving effect to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the such increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.
Appears in 1 contract
Optional Increase of Commitments. At any time following To the Closing extent that the total Commitments for all Lenders is less than $2,500,000,000 on the Effective Date, the Company shall have the rightBorrower may, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent and the Lenders (which notice shall not obligate a “New Commitment Notice”), elect to request an increase to the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment existing Commitments (each any such increase, the “New Commitments”) in a “Facility Increase”)minimum amount of $5,000,000 and up to an amount equal to the difference between $2,500,000,000 and the Commitments as of the date prior to the making of such New Commitments. Each Lender shall have 5 Business Days from receipt of such New Commitment Notice to elect to provide all or a portion of the New Commitments; provided that:
, in the event that the total New Commitments requested to be provided by the Lenders exceeds the maximum amount of the New Commitments requested by the Borrower, each Lender’s portion of the New Commitments shall be reduced pro rata based on the percentage that such Lender’s proposed commitments bears to the total amount of New Commitments requested by all Lenders. Each such New Commitment Notice shall specify the date (aeach, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a Payment Date that is not less than 10 Business Days after the date on which such New Commitment Notice is delivered to the Administrative Agent and the Lenders. Following the expiration of the Lenders exclusivity period the Borrower shall be entitled to solicit New Commitments for other Persons that are not existing Lenders that are Eligible Assignees (each, a “New Lender”). No later than 2 Business Days prior to the Increased Amount Date the Borrower shall notify the Administrative Agent and each Lender of (i) the identity of each existing Lender (each, an “Increasing Lender”) and each New Lender and (ii) the portion of such New Commitments to be allocated to such New Lenders and Increasing Lenders; provided that, for the avoidance of doubt, any existing Lender approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment; provided further that (x) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification thereinsuch New Commitments and (y) in all respects on such respective dates;
(c) each Facility Increase the New Commitments shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made effected pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase one or otherwise affect more Accession Agreements executed and delivered by the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility IncreaseBorrower, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing New Lender or any new lender commits to such requested Facility IncreaseIncreasing Lender, (i) any new lender will execute an accession agreement to this Agreementas applicable, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify Agent. On any Increased Amount Date on which New Commitments are effected, subject to the Administrative Borrower and the Lenders satisfaction of the final allocation foregoing terms and conditions, the Borrower shall borrow from the New Lenders and Increasing Lenders an amount of such Facility Increase and Increase Effective Date;
(j) new Advances the Administrative Agent and proceeds of which will be applied to prepay the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all outstanding Advances of the terms and conditions of this Agreementexisting Lenders, and shall be secured by the Collateral and guaranteed by Guarantors pursuant in each case so that after giving pro forma effect to the terms hereof.New Commitments, such Advances and such prepayments, each Lender holds Advances on a pro rata basis based on the new amount of total Commitments. Seventh Amended and Restated Credit Agreement 65
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Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from any after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders in writing to increase their respective Commitments (proportionately based on their Ratable Shares or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested Facility Increase by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in an aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may designate one or borrowings thereundermore financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Agent, who shall promptly notify the Lenders;
(b) that the Borrowers shall have delivered to the Agent a copy of such Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in the aggregate amount of the Commitments pursuant to this Section 3.12 since the date of this Agreement, does not exceed $150,000,000;
(d) that, before and after giving effect to such increase, the representations and warranties of the Borrowers contained herein and in the other Loan Documents Article 10 of this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, (except to the extent that any such representations and warranties representation or warranty expressly relate solely relates to an earlier date (date, in which case such representations and warranties it shall have been true and correct in all material respects on and as of such earlier date); provided and
(e) that the Agent shall have received such evidence (including an opinion of Borrowers’ counsel) as it may reasonably request to confirm the Borrowers’ due authorization of the transactions contemplated by this Section 3.12 and the validity and enforceability of the obligations of the Borrowers resulting therefrom. On the date of any representation or warranty that is qualified as to “materiality”such increase, “Material Adverse Effect” or similar language the Borrowers shall be true deemed to have represented to the Agent and correct the Lenders that the conditions set forth in clauses (after giving effect to a) through (e) above have been satisfied. Upon any qualification therein) increase in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made the Commitments pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Facility Increase and Increase Effective Date;
(j) the Administrative Agent and the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors pursuant to the terms hereof.3.12:
Appears in 1 contract
Optional Increase of Commitments. At any time following To the extent that the total Commitments for all Lenders is less than $1,350,000,000 on the Closing Date, the Company shall have the rightBorrower may, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent and the Lenders (which notice shall not obligate a “New Commitment Notice”), elect to request an increase to the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment existing Commitments (each any such increase, the “New Commitments”) in a “Facility Increase”)minimum amount of $5,000,000 and up to an amount equal to the difference between $1,350,000,000 and the Commitments as of the date prior to the making of such New Commitments. Each Lender shall have 5 Business Days from receipt of such New Commitment Notice to elect to provide all or a portion of the New Commitments; provided that:
, in the event that the total New Commitments requested to be provided by the Lenders exceeds the maximum amount of the New Commitments requested by the Borrower, each Lender’s portion of the New Commitments shall be reduced pro rata based on the percentage that such Lender’s proposed commitments bears to the total amount of New Commitments requested by all Lenders. Each such New Commitment Notice shall specify the date (aeach, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a Payment Date that is not less than 10 Business Days after the date on which such New Commitment Notice is delivered to the Administrative Agent and the Lenders. Following the expiration of the Lenders exclusivity period the Borrower shall be entitled to solicit New Commitments for other Persons that are not existing Lenders that are Eligible Assignees (each, a “New Lender”). No later than 2 Business Days prior to the Increased Amount Date the Borrower shall notify the Administrative Agent and each Lender of (i) the identity of each existing Lender (each, an “Increasing Lender”) and each New Lender and (ii) the portion of such New Commitments to be allocated to such New Lenders and Increasing Lenders; provided that, for the avoidance of doubt, any existing Lender approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment; provided further that (x) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification thereinsuch New Commitments and (y) in all respects on such respective dates;
(c) each Facility Increase the New Commitments shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made effected pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase one or otherwise affect more Accession Agreements executed and delivered by the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility IncreaseBorrower, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing New Lender or any new lender commits to such requested Facility IncreaseIncreasing Lender, (i) any new lender will execute an accession agreement to this Agreementas applicable, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify Agent. On any Increased Amount Date on which New Commitments are effected, subject to the Administrative Borrower and the Lenders satisfaction of the final allocation foregoing terms and conditions, the Borrower shall borrow from the New Lenders and Increasing Lenders an amount of such Facility Increase and Increase Effective Date;
(j) new Advances the Administrative Agent and proceeds of which will be applied to prepay the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all outstanding Advances of the terms and conditions of this Agreementexisting Lenders, and shall be secured by the Collateral and guaranteed by Guarantors pursuant in each case so that after giving pro forma effect to the terms hereofNew Commitments, such Advances and such prepayments, each Lender holds Advances on a pro rata basis based on the new amount of total Commitments.
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Optional Increase of Commitments. At any time following To the Closing extent that the total Commitments for all Lenders is less than $2,500,000,000 $2,250,000,000 on the First Amendment Effective Date, the Company shall have the rightBorrower may, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent and the Lenders (which notice shall not obligate a “New Commitment Notice”), elect to request an increase to the Company to increase the Aggregate Commitment) to increase the Aggregate Commitment existing Commitments (each any such increase, the “New Commitments”) in a “Facility Increase”)minimum amount of $5,000,000 and up to an amount equal to the difference between $2,500,000,000 $2,250,000,000 and the Commitments as of the date prior to the making of such New Commitments. Each Lender shall have 5 Business Days from receipt of such New Commitment Notice to elect to provide all or a portion of the New Commitments; provided that:
, in the event that the total New Commitments requested to be provided by the Lenders exceeds the maximum amount of the New Commitments requested by the Borrower, each Lender’s portion of the New Commitments shall be reduced pro rata based on the percentage that such ▇▇▇▇▇▇’s proposed commitments bears to the total amount of New Commitments requested by all Lenders. Each such New Commitment Notice shall specify the date (aeach, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a Payment Date that is not less than 10 Business Days after the date on which such New Commitment Notice is delivered to the Administrative Agent and the Lenders. Following the expiration of the Lenders exclusivity period the Borrower shall be entitled to solicit New Commitments for other Persons that are not existing Lenders that are Eligible Assignees (each, a “New Lender”). No later than 2 Business Days prior to the Increased Amount Date the Borrower shall notify the Administrative Agent and each Lender of (i) the identity of each existing Lender (each, an “Increasing Lender”) and each New Lender and (ii) the portion of such New Commitments to be allocated to such New Lenders and Increasing Lenders; provided that, for the avoidance of doubt, any existing Lender approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment; provided further that (x) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or would result from any such requested Facility Increase or borrowings thereunder;
(b) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification thereinsuch New Commitments and (y) in all respects on such respective dates;
(c) each Facility Increase the New Commitments shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made effected pursuant to this Section 2.7 shall not exceed $200,000,000;
(e) Facility Increases shall not increase one or otherwise affect more Accession Agreements executed and delivered by the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility IncreaseBorrower, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing New Lender or any new lender commits to such requested Facility IncreaseIncreasing Lender, (i) any new lender will execute an accession agreement to this Agreementas applicable, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify Agent. On any Increased Amount Date on which New Commitments are effected, subject to the Administrative Borrower and the Lenders satisfaction of the final allocation foregoing terms and conditions, the Borrower shall borrow from the New Lenders and Increasing Lenders an amount of such Facility Increase and Increase Effective Date;
(j) new Advances the Administrative Agent and proceeds of which will be applied to prepay the Lenders shall have received any fees and expenses payable by the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all outstanding Advances of the terms and conditions of this Agreementexisting Lenders, and shall be secured by the Collateral and guaranteed by Guarantors pursuant in each case so that after giving pro forma effect to the terms hereofNew Commitments, such Advances and such prepayments, each Lender holds Advances on a pro rata basis based on the new amount of total Commitments.
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Optional Increase of Commitments. At any time following the Closing Date, the Company shall have the right, from time to time and upon not less than fifteen (15) Business Days (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion) prior written notice to the Administrative Agent date that is one hundred eighty (which notice shall not obligate 180) days prior to the Company to increase last day of the Aggregate Commitment) to increase the Aggregate Commitment (each such increasePeriod, a “Facility Increase”); provided that:
(a) if no Incipient Default or Event of Default shall have occurred and be continuing (or would result from any after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders in writing to increase their respective Commitments (proportionately based on their Ratable Shares or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested Facility Increase by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers' request, existing Lenders fail to agree to increase their respective Commitments in an aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may designate one or borrowings thereundermore financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Administrative Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a "Commitment Acceptance") in form reasonably satisfactory to the Administrative Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and all the rights and obligations of a Lender with such Commitment hereunder; provided:
(a) that the Borrowers shall provide prompt notice of the existing Lenders and other financial institutions, if any, participating in such increase to the Administrative Agent, who shall promptly notify the Lenders;
(b) that the Borrowers shall have delivered to the Administrative Agent a copy of the Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in the aggregate amount of the Commitments pursuant to this Section 3.11 since the date of this Agreement, does not exceed $75,000,000;
(d) that, before and after giving effect to such increase, the representations and warranties of the Borrowers contained herein and in the other Loan Documents Article 10 of this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Facility Increase and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date)respects; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) each Facility Increase shall be in an aggregate principal amount of at least $50,000,000 or a whole multiple of $10,000,000 in excess thereof;
(d) the aggregate amount of all Facility Increases made pursuant to this Section 2.7 shall not exceed $200,000,000;and
(e) Facility Increases shall not increase or otherwise affect the Letter of Credit Limit or the Swingline Limit;
(f) the Commitment of any Lender shall not be increased without the approval of such Lender;
(g) in connection with each proposed Facility Increase, the Company may solicit commitments from (i) any Lender (provided that no Lender shall have an obligation to commit to all or a portion of the proposed Facility Increase) or (ii) Eligible Assignees that are reasonably acceptable to both the Administrative Agent and the Company;
(h) in the event that any existing Lender or any new lender commits to such requested Facility Increase, (i) any new lender will execute an accession agreement to this Agreement, (ii) the Commitment of any existing Lender that has committed to provide any of the requested increase shall be increased, (iii) the Pro Rata Shares of the Lenders shall be adjusted, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to affect the reallocation of the Commitments (and the Borrowers shall pay any amounts due under Section 4.6 in connection therewith), and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which the Lenders have agreed to increase their respective Commitments or make new commitments in response to the Company’s request for an increase pursuant to this Section 2.7 and which other changes do not adversely affect the rights of those Lenders not participating in the increase;
(i) if the Aggregate Commitment is increased in accordance with this Section 2.7, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase and the Administrative Agent shall promptly notify have received such evidence (including an opinion of Borrowers' counsel) as it may reasonably request to confirm the Administrative Borrower Borrowers' due authorization of the transactions contemplated by this Section 3.11 and the Lenders validity and enforceability of the final allocation obligations of the Borrowers resulting therefrom. On the date of any such Facility Increase and Increase Effective Date;
(j) increase, the Borrowers shall be deemed to have represented to the Administrative Agent and the Lenders shall that the conditions set forth in clauses (a) through (e) above have received been satisfied. Upon any fees and expenses payable by increase in the Loan Parties in respect of such Facility Increase; and
(k) each Facility Increase shall be subject to all aggregate amount of the terms and conditions of this Agreement, and shall be secured by the Collateral and guaranteed by Guarantors Commitments pursuant to the terms hereof.this Section 3.11:
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